Re KL (No 2) - [2024] VSC 741

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0271

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by KL

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2024
DATE OF RULING:	29 November 2024
CASE MAY BE CITED AS:	Re KL (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 741

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CRIMINAL LAW – Bail – 13 year old child – Presumption of doli incapax – Charges of motor vehicle theft, aggravated burglary, armed robbery, theft, threats to kill and false imprisonment – Further charges and breaches of conditions during 1 week grant of bail – Requirement to show exceptional circumstances – Exceptional circumstances established – Unacceptable risk established – Bail refused – Bail Act 1977 (Vic), ss 3AAA, 3B, 4E, 12.

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APPEARANCES:	Counsel	Solicitors
For the applicant	T Marsh	Victoria Legal Aid
For the respondent	P Murphy (solicitor)	Victoria Police

HIS HONOUR:

A. Introduction

Last Friday, 22 November 2024, a 13 year old child who turns 14 in approximately 2 weeks (“KL”)[1] was granted bail for a limited period of 1 week.[2] At the time bail was granted, KL was told directly that it was necessary for him to comply strictly with the conditions of his bail and that any breach would be treated with the utmost seriousness.[3]
[1]A pseudonym has been used to protect the identity of the applicant and to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic).
[2]Re KL [2024] VSC 734.
[3]Ibid, [71].
Regrettably, KL has failed to heed the clearest of warnings and again finds himself on remand with respect to further charges, namely:
(1)Armed robbery, contrary to section 75A(1) of the Crimes Act 1958 (Vic).
(2)Theft of a motor vehicle, contrary to section 74(1) of the Crimes Act.
(3)Theft, contrary to section 74(1) of the Crimes Act.
On 27 November 2024, KL was remanded in custody to appear at the Children’s Court of Victoria. At the hearing yesterday in the Children’s Court, KL did not make an application for bail. Instead, the matter was adjourned until after the hearing and determination of the application for bail in this court listed at 9.30am today.
KL now seeks bail again in respect to the charges the subject of the application made last Friday.
For the reasons to follow, the application for a further grant of bail is refused.

B. Background

B.1 Alleged offending

The previous charges laid against KL are set out in the reasons delivered last week. Without repeating the specific details, those charges include aggravated burglaries, thefts of motor vehicles and other items, unlicensed driving, false imprisonment, armed robbery, threats to kill, assault with a weapon and possession of a prohibited weapon.[4] It is alleged these offences were committed between late July 2024 and late August 2024.
[4]Ibid, [9], [16], [21], [26].
On 19 September 2024, the Children’s Court granted bail, subject…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re KL (No 2)

Details

AGLC: Re KL (No 2) [2024] VSC 741
Case: [2024] VSC 741
Decision Date: 29 November 2024

CaseChat Overview and Summary

In the case of Re KL (No 2), the applicant, a 13-year-old child, sought bail from the County Court of Victoria following charges including motor vehicle theft, aggravated burglary, armed robbery, theft, threats to kill and false imprisonment. The case concerned the assessment of the risk posed by the applicant and the consideration of exceptional circumstances under the Bail Act 1977 (Vic). The court had to determine whether the presumption of doli incapax applied to the applicant and, if so, whether exceptional circumstances existed to justify bail refusal despite this presumption. The court was also required to weigh the seriousness of the charges and the risk the applicant posed to the community against the principle that children should not be subject to imprisonment unless absolutely necessary.

The court considered the principle of doli incapax, which presumes that a child under the age of 14 lacks the capacity to commit an offence. However, the court noted that the presumption could be rebutted if exceptional circumstances existed. The court examined the severity of the charges, the applicant's history of offending and breaches of bail conditions, and the risk posed to the community. The court concluded that the exceptional circumstances test was satisfied due to the gravity of the charges and the risk the applicant posed. The court found that the applicant had committed serious and violent offences and had breached bail conditions within a week of being granted bail, indicating a significant risk to the community if released.

The County Court of Victoria held that the exceptional circumstances did indeed exist and that the risk posed by the applicant to the community was unacceptable. Consequently, the court refused the application for bail. The court emphasised the need to protect the community and the seriousness of the applicant's offending history and behaviour. The court's decision was grounded in the statutory provisions of the Bail Act 1977 (Vic), particularly sections 3AAA, 3B, 4E, and 12. The court's reasoning highlighted the balance between the presumption of doli incapax and the need to address serious criminal behaviour by children. The final order was that the applicant's bail application was refused, and the applicant was to remain in custody pending further court proceedings.

Orders