Re MG

Case [2025] VSC 384 24 June 2025

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2025 0111

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by MG

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2025
DATE OF JUDGMENT:	24 June 2025
DATE OF REASONS:	29 June 2025
CASE MAY BE CITED AS:	Re MG
MEDIUM NEUTRAL CITATION:	[2025] VSC 384

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CRIMINAL LAW – Bail – 17 year old, intellectually disabled Aboriginal applicant - Aggravated burglary (x2) and other offences – Offences committed while applicant on seven grants of bail, and subject to seven summons – Exceptional circumstances test applicable – Respondent conceded open to Court to find exceptional circumstances – Exceptional circumstances made out – Whether unacceptable risk – Poor performance on previous grants of bail - Refusal of applicant to accept supervision and support of Youth Justice – Youth Justice no longer supportive of Supervised Bail – Whether recent determination of intellectual disability significant change – Nature of prior and current alleged offending points to risk of community being endangered – Significant risk applicant would not abide by conditions of bail – Recent changes to Bail Act 1977 making safety of the community of overarching importance - Unacceptable risk made out - Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4AA, 4A and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Marcs	Kurnai Legal Practice
For the Respondent	Mr P McKimmie, Solicitor Advocate	Victoria Police Legal Practice Group

HIS HONOUR:

Introduction

The applicant, ‘MG’, is a 17-year old mildly intellectually disabled Indigenous boy; a proud member of the Yorta Yorta, Kurnai, Gunditjmara and Monero people. He applied for bail on charges of aggravated burglary (x2), theft, theft from motor vehicle, and possess methyl amphetamine, which arose from conduct on 4 June 2025 (‘application offences’). The applicant had applied for and had bail refused for the alleged application offences in the Children’s Court on both 4 June and 12 June this year.

The parties agreed that the correct test for this bail application was the exceptional circumstances test, [1] because the applicant is alleged to have committed a Schedule 2 offence – aggravated burglary -[2] while on bail for that same charge, thereby enlivening Bail Act 1977 (‘the Act’) s 4AA(2)(c)(i). The applicant asserted that exceptional circumstances were made out, and the respondent conceded that it would be open to the Court to be satisfied of the existence of exceptional circumstances. However, the respondent resisted the application on the basis that the applicant posed an unacceptable risk of committing a Schedule 1 or Schedule 2 offence whilst on bail,[3] or otherwise endangering the safety or welfare of another person, whether by committing an offence that had that effect or by any other means.[4]
[1]Bail Act 1977 (‘the Act’) s 4A.
[2]Ibid Schedule 2 Item 22(b).
[3]Ibid s 4E(1)(a)(iaa).
[4]Ibid s 4E(1)(a)(i).

Having heard the application, I was satisfied of…

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 MG

Details

AGLC: Re MG [2025] VSC 384
Case: [2025] VSC 384
Decision Date: 24 June 2025

CaseChat Overview and Summary

The case of Re MG involved a seventeen-year-old intellectually disabled Aboriginal applicant who was seeking bail on charges of aggravated burglary, among other offences. The case was heard in the Magistrates' Court of Victoria. The applicant had been on seven previous grants of bail and was subject to seven summonses at the time of the application. The primary concern was whether the applicant posed an unacceptable risk to the community, which would warrant the denial of bail.

The court had to determine whether exceptional circumstances existed that would warrant the exercise of the court's discretion to refuse bail, and if the applicant's release would lead to an unacceptable risk of the community being endangered. The respondent conceded that the court was open to finding exceptional circumstances, which shifted the burden to the applicant to demonstrate why bail should be granted. The court also considered the applicant's refusal to accept supervision and support from Youth Justice, and the withdrawal of their support for supervised bail.

The court found that the exceptional circumstances test was applicable and that the exceptional circumstances were made out. The court noted the applicant's poor performance on previous grants of bail, the nature of the prior and current alleged offending, and the significant risk that the applicant would not abide by the conditions of bail. The recent changes to the Bail Act 1977, which place the safety of the community as of overarching importance, further supported the court's decision. Consequently, the court found that the risk to the community was unacceptable, and bail was refused.

Orders