Re SQA - [2023] VSC 359

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0003

IN THE MATTER of the Bail Act 1977

– and –

IN THE MATTER of an Application for Bail by SQA

BETWEEN:

SQA	Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

S ECR 2023 0007

IN THE MATTER of the Bail Act 1977

– and –

IN THE MATTER of an Application for Bail by MG

BETWEEN:

MG	Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2023
DATE OF JUDGMENT:	7 March 2023
DATE OF REASONS:	26 June 2023
CASE MAY BE CITED AS:	Re SQA; Re MG
MEDIUM NEUTRAL CITATION:	[2023] VSC 359

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CRIMINAL LAW — Applications for bail — Child applicants — Charges of murder and kidnapping — Exceptional circumstances — Circumstantial case — Prospect of significant delay — Special vulnerability — Exceptional circumstances shown — Unacceptable risk — No criminal history — Parity — Co‑accused granted bail — Risk can be rendered acceptable with appropriate bail conditions — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (SQA)	Sai Ranjit	Kimani Boden
For the Respondent	Jordan Johnston	Andrea Royston
For the Applicant (MG)	Glenn Casement	Lisa Andrews
For the Respondent	Jordan Johnston	Andrea Royston

HIS HONOUR:

Introduction

By applications dated 5 January 2023 and 10 January 2023 respectively, SQA and MG each seek a grant of bail from this court in respect of the following allegations over which they are both charged:

(a) murder contrary to the common law; and,

(b) kidnapping pursuant to section 63A(1) of the Crimes Act 1958 (Vic).

On 16 October 2022, Abdulahi Abdi [‘the complainant’] was kidnapped by a group of males, taken to various locations, assaulted, and then made to lure Khalid Mahat [‘the deceased’] to an address in Heidelberg West. After attending the address, the deceased was set upon and killed by a group of males during the course of an attack involving multiple weapons.

On 27 October 2022, MG, who is 17 years old, was charged with murder and kidnapping, and remanded in custody.[1]
[1]At the time of the alleged offending, MG was on summons for charges of handling stolen goods, stating a false name, and stating a false address. The matter is next listed for further mention at the Heidelberg Children’s Court on 8 March 2023.

On 1 November 2022, SQA, who is also 17 years old, but was 16 years old at the time, was charged with murder and kidnapping, and remanded in custody.

There are an additional five co‑accused who have been charged with both murder and kidnapping: YA, AF, ZHA, IM and BM.[2] A further two co‑accused have been charged with kidnapping alone: SMA and AY. At the time of the alleged offending, all co‑accused were aged between 16 and 19 years of age.
[2]BM was granted bail in the Supreme Court on 14…

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 SQA

Details

AGLC: Re SQA [2023] VSC 359
Case: [2023] VSC 359
Decision Date: 7 March 2023

CaseChat Overview and Summary

The case before the court involved an application for bail by a child applicant, SQA, who faced charges of murder and kidnapping. The matter was heard in the Victorian Court of Appeal. The primary concern was whether the child applicant met the criteria for bail under the Bail Act 1977 (Vic). The court had to determine whether exceptional circumstances existed, considering the nature and circumstances of the alleged offences, the strength of the prosecution case, the applicant's criminal history, and the potential impact of a significant delay on the applicant.

The court meticulously evaluated the evidence presented regarding the circumstantial case against the applicant, the prospect of a significant delay in the proceedings, and the special vulnerability of the applicant. The prosecution argued that the charges were serious and the evidence against the applicant was strong. However, the defence countered that the case against the applicant was circumstantial and that there were exceptional circumstances warranting bail, including the applicant's young age, lack of criminal history, and the potential for prejudice from prolonged detention. The court also considered the fact that a co-accused had been granted bail, which raised issues of parity.

Upon thorough examination, the court found that exceptional circumstances did exist, including the prospect of significant delay and the applicant's special vulnerability. The court concluded that the risk posed by the applicant could be rendered acceptable through appropriate bail conditions. Consequently, the application for bail was granted. The court imposed stringent bail conditions to ensure the safety of the community and the likelihood of the applicant attending court.

Orders