Re WD

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0280

IN THE MATTER of the Bail Act 1977 (Vic)
AND
IN THE MATTER of an application for bail by WD
WD	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	14, 15 December 2023
DATE OF RULING:	18 December 2023
CASE MAY BE CITED AS:	Re WD
MEDIUM NEUTRAL CITATION:	[2023] VSC 780

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CRIMINAL LAW – Bail – Application for revocation of bail – Applicant 12-year-old child charged with murder – Applicant bailed to secure welfare service – Placement at secure welfare service alleged to no longer be available – Unacceptable risk – Insufficient evidence – Revocation application adjourned – Bail Act 1977 (Vic), ss 1B, 3B, 4AA, 4E, 12, 16B, 18AE – Children, Youth and Families Act 2005 (Vic), ss 44, 72P, 346, 534.

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APPEARANCES:	Counsel	Solicitors
For the applicant	A Waters	Dowling McGregor
For the respondent	S Tamburro (solicitor) (14 December 2023) A Stephanides (solicitor) (15 December 2023)	Office of Public Prosecutions
For the Secretary to the Department of Families, Fairness and Housing	S Fitzgerald	Department of Families, Fairness and Housing

HIS HONOUR:

A. Introduction

An application has been made to have the court revoke bail granted in respect of the applicant, a 12-year-old girl (“WD”)[1] charged with murder.[2] Counsel appearing on behalf of WD opposes the revocation of WD’s grant of bail and has sought an adjournment of the application until tomorrow, 19 December 2023. On that day, another application in respect of WD is already listed for hearing in the parens patriae jurisdiction of the court. The adjournment of the revocation application is opposed.
[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]Bail Act 1977 (Vic), s 18AE.
On 17 November 2023, WD was granted bail subject to conditions, namely that she reside at a lock-up secure welfare service (“the Secure Location”) in the care of the Department of Families, Fairness and Housing (“the Department”).[3]
[3]See Children, Youth and Families Act, s 44(a)(ii).
Mid-afternoon on 14 December 2023, the Director filed an urgent application to revoke WD’s grant of bail on the basis that placement at the Secure Location was no longer available and, absent appropriate accommodation, WD would pose an unacceptable risk of 1 or more of:
(1)Endangering the safety or welfare of any person.
(2)Committing an offence while on bail.
(3)Failing to surrender into custody in accordance with the conditions of bail.
The application to revoke WD’s bail is supported by the Secretary to the Department of Families, Fairness and Housing (“the Secretary”).

B. Background

B.1 Alleged offending

It is unnecessary to descend into the detail of the alleged offending for the purposes of this application. Self-evidently, given the nature of the offence with which WD is charged, the circumstances are of the utmost seriousness.

B.2 Procedural history

The alleged offending occurred early in the morning of 16 November 2023. Later that day, WD was remanded in custody to appear at the Children’s Court of Victoria in Melbourne.
On 17 November 2023, an urgent application for bail was made to this court on WD’s behalf. As WD had been charged with murder, it was necessary for her to establish exceptional circumstances before bail could be granted.[4] The Director properly accepted that the evidence overwhelmingly demonstrated that such circumstances existed.
[4]Bail Act, s 4AA(1), sch 1, item 2.
The real issue on the bail application was whether or not there was an unacceptable risk that, if released on bail, WD would endanger the safety or welfare of any person.[5] The proposed conditions of bail included that WD be transferred to secure accommodation from which she could not depart. Ultimately, bail was granted on the condition that WD reside at the Secure Location. The Secure Location is staffed 24 hours a day, and while residing there WD would have access to therapeutic support, including medical and other assistance.
[5]Ibid, s 4E(1)(a)(i).
On 6 December 2023, WD’s grant of bail was extended on largely the same conditions at a bail monitoring hearing. Bail was extended on an undertaking for and on WD’s behalf and on certain conditions, namely that she continue to reside at the Secure Location and attend a further bail monitoring hearing on 27 December 2023. As WD is the subject of a “care by Secretary” order,[6] the undertaking was given by the Secretary on WD’s behalf (as had been done previously on 17 November 2023).[7] On the same date, the Secretary foreshadowed a possible application in the court’s parens patriae jurisdiction in relation to arrangements for WD’s ongoing care.

C. Revocation application

[6]Children, Youth and Families Act, s 289.

[7]Bail Act, s 16B.

C.1 Factual background

The application to revoke WD’s grant of bail was listed for hearing later on the afternoon of 14 December 2023, as the court was told the matter was urgent. An affidavit affirmed by a principal practitioner of the Department was filed in support of the Director’s application. The principal practitioner also gave evidence at the hearing. She deposed that the Secretary’s position in relation to WD’s bail had changed, as the Secretary could no longer ensure the safety of WD, the departmental staff who cared for her or the broader community whilst WD was residing at the Secure Location.
The principal practitioner deposed that the Secretary considered it would be in WD’s best interests for WD to be relocated to the Melbourne Youth Justice Centre in Parkville (“the Youth Justice Centre”). This would allow for an intensive forensic assessment to be carried out which would inform WD’s ongoing care and therapeutic needs.
In explaining the Secretary’s suggested inability to meet WD’s emerging medical needs, the principal practitioner detailed an instance of self-harming behaviour which WD was alleged to have engaged in on 13 December 2023. This involved WD self-administering an excessive quantity of Ventolin from an inhaler that had been provided to her after she suffered from an asthma attack. The principal practitioner deposed that, while responding to this incident, it was identified that risks to departmental staff and the community would escalate significantly if WD was required to be transported from the Secure Location to hospital. She also noted that there was a risk that WD would attempt to abscond if taken outside the Secure Location to attend a hospital.
The principal practitioner explained that changing circumstances at the Secure Location had contributed to the risks associated with WD’s grant of bail. At the time bail was granted, there were no other children housed at the Secure Location. The number of young people requiring care at the Secure Location has since increased and is predicted to increase further over the holiday period. The principal practitioner deposed that due to the increasing number of young people and WD’s escalating dysregulated behaviours, including making threats to kill staff and other young people at the Secure Location, there was insufficient space at the Secure Location to ensure WD’s safety and the safety of other children placed there. The principal practitioner outlined that the position of the Department was that the risk associated with WD had reached an intolerable level and it could not be mitigated within the Secure Location.
Further, in relation to the suggestion that it was preferable that WD be transferred to the Youth Justice Centre, the principal practitioner stated that the transfer would enable a more in-depth forensic assessment of WD to be conducted, as the Youth Justice Centre had facilities to observe WD for longer periods of time. Various services were itemised as being available to WD in the Youth Justice Centre which could not be provided at the Secure Location in the same manner. As an example, it was said that forensic assessments in the Secure Location were limited to periodic sessions as opposed to 24-hour observation. It was stated that multiple barriers existed at the Secure Location to an assessment being undertaken while WD’s current bail conditions remained in place, and that such barriers did not exist at the Youth Justice Centre.
After the principal practitioner was asked by the court to make enquiries, she confirmed that there was a bed available for WD at the Secure Location on the evening of 14 December 2023. She further acknowledged that WD did not presently pose a risk of physical harm to other children at the Secure Location as she was being kept isolated from the other residents. The principal practitioner gave evidence that this arrangement was not viable for more than 1 night and stated that the Secretary could not guarantee the safety of WD or the community if circumstances arose overnight that made it necessary to transport WD from the Secure Location to hospital. There was no evidence that any transfer to a hospital was actually required that evening.
Given the urgency with which the matter had been brought on for hearing, WD’s counsel had been unable to obtain instructions from WD. On the application of counsel for WD, the revocation application was adjourned to the following morning to allow WD’s counsel to obtain instructions overnight.
During the course of submissions on the resumption of the application, I indicated that I was inclined to adjourn the revocation application to the following Tuesday to be heard with the foreshadowed application in the court’s parens patriae jurisdiction, so that all matters relevant to WD’s position could be before the court in considering whether or not bail should be revoked. In doing so, and without any criticism of the principal practitioner who had been required to prepare her affidavit with haste, I observed that although her affidavit was stated to be made “from [her] own knowledge unless otherwise stated”, much of the information it contained was necessarily hearsay. In response, the Secretary sought leave to adduce further evidence from a person working at the Secure Location who had direct involvement with WD. That leave was granted.
Evidence was given by the operations manager of the Secure Location, who has worked at the Secure Location for 4 years and is responsible for its day-to-day operations. In addition to having some direct involvement with WD, the employees responsible for the full-time care of WD report directly to the operations manager.
The operations manager gave evidence that the Secure Location could accommodate up to 10 young people. She said that in addition to WD, there were presently 4 residents housed at the Secure Location. She also gave evidence that she was not certain at any point in time how many additional residents would need to be accommodated. The operations manager explained that weekly meetings are held to discuss possible new arrivals. At a meeting the previous day, it was foreshadowed that a further 4 residents “potentially will come in” to the Secure Location, but the operations manager stated that this was just an indication and there was no certainty as to whether or not these young people would be admitted. She explained that the more young people being cared for at the Secure Location, the harder it would become to provide the necessary supervision and care to the residents. There was no evidence to suggest there had been any new arrivals since the most recent weekly meeting.
The operations manager described the Secure Location as a small building. She said presently WD had a large area in the building allocated to her, including her own bedroom, a large lounge room, a hallway and an outside area for recreational use. The operations manager stated that the use of the outside space was very important for WD’s routine and structure.
There is also a seclusion room at the Secure Location.[8] The operations manager gave evidence that this room was very rarely used, but may be used as “a last resort” for any resident whose conduct escalates to such an unacceptable level that no other form of more limited containment is appropriate. This room was described as a very small space with no windows, which has nothing but a bed, a toilet and a basin in it. WD has been a resident in the Secure Location for the last 4 weeks. There has not been an occasion during this time when it has been considered necessary to adopt this “last resort” measure in relation to WD.
[8]The ability to resort to seclusion measures in a secure welfare service such as the Secure Location is authorised by statute: see Children, Youth and Families Act, s 72P.
Due to the necessary restrictions that have been imposed at the Secure Location, WD cannot have direct physical contact with the other residents. She enjoys spending long periods playing outside and this is facilitated by her care team on a regular basis. However, when she is in the outdoor area, WD is often able to see other residents. This has resulted in some verbally abusive exchanges between WD and other residents, including threats to kill. Other residents have also attempted to give WD pencils by slipping them under a common door, which creates a safety risk for WD. On another occasion, WD blocked a doorway and attempted to prevent 1 of her carers from leaving a room. However, since 17 November 2023, WD has not committed any physical assault with respect to her carers or anyone else.
Another consequence of there being other residents at the Secure Location is that WD gets very distressed from time to time because she is unable to have contact with them. The operations manager gave evidence that on 1 such occasion, WD protested by removing her clothes and urinating on the floor.
The operations manager also gave evidence about the event on 13 December 2023 in which WD consumed excessive amounts of Ventolin, which resulted in concern about WD’s heartrate. She explained that although hospitalisation was not required in response to the incident, steps were taken in case that need eventuated. The operations manager gave evidence that following the incident, she contacted the hospital and another staff member contacted police. She expressed concerns similar to those of the principal practitioner set out above[9] about the potential security risks associated with transporting WD to hospital. However, in the 4 weeks WD has been at the Secure Location, there has not been occasion to transport her to hospital.
[9]See par 12 above.
Under cross-examination, various details were given about WD’s care and the therapeutic regime in place. It was acknowledged that there was presently no immediate need to arrange an “emergency exit” of WD from the Secure Location and that there were no capacity issues at the present time. It was also acknowledged that, from time to time, it had been necessary to transport other children to hospital with the assistance of a police escort. While the operations manager stated that, naturally, she had no control over the police, a “strong liaison” was maintained between the Secure Location and Victoria Police.
A summation of the facts would not be complete without referring to WD’s behaviour during the course of the hearing. In marked contrast to her demeanour during the bail application on 17 November 2023, when attending by audio-visual link for this hearing, WD appeared calm and responsive. After attending the hearing remotely for more than an hour, she chose not to participate further. The staff member accompanying WD stated that WD was unsettled and found the volume of information to be overwhelming. This response was perfectly understandable for a child who has been assessed as having a mild to moderate intellectual disability and cognitive functioning well below other children her age. However, in the time she was observable, WD was responsive and respectful to her counsel at the hearing and also to the staff present at the Secure Location.

C.2 Submissions

The position of the Director was ultimately that, if the matter were adjourned until 19 December 2023 and WD were to remain in the Secure Location, she did not press the application to revoke bail at that time. However, if WD were to be exited from the Secure Location, absent equally safe alternative accommodation, the Director would have no option but to press the application for revocation of bail.
The Secretary maintained her position that the situation was untenable. It was submitted that the evidence established secure welfare of WD at the Secure Location was no longer achievable because the safety of WD could not be ensured and there were serious safety risks to others. In relation to the risk to others, it was submitted this was not confined to persons at the Secure Location, but was also in respect of the community more generally in the event that WD engaged in conduct that required her to be hospitalised. It was also submitted that a transfer to the Youth Justice Centre was in WD’s best interests, as it would enable an intensive forensic assessment to commence immediately rather than being drawn out over a period of 4 to 6 weeks, which would be the position if she were to remain at the Secure Location.
WD’s counsel informed the court that, as the Secretary had indicated that she no longer intended to bring an application in the parens patriae jurisdiction of the court, he was instructed to make that application on WD’s behalf next Tuesday. It was submitted that the status quo should be maintained until that application could be heard. Further, it was submitted that the Secretary had legal obligations as WD’s guardian and it was not simply a matter of the Secretary withdrawing an undertaking previously given to the court.
In addition, it was submitted that there was a strong prospect that WD would be found not guilty of the offence charged. The court was informed that the defence would rely upon the presumption of doli incapax, as it was likely that WD did not have the capacity to understand the wrongfulness of her conduct with respect to the offence charged.[10]
[10]In this regard, reference was made to Director of Public Prosecutions v PM [2023] VSC 560 (Incerti J).
In opposing the application for revocation of bail, WD’s counsel placed reliance on the decision of HA v The Queen.[11] In that case, the Court of Appeal held that in circumstances where it was unlikely that a custodial sentence would be imposed, the continued incarceration of a young person pre-trial was “akin to a form of preventative detention” which, absent any specific statutory provision, was “alien to fundamental principles that underpin our system of justice”.[12]
[11][2021] VSCA 64.
[12]Ibid, [63]-[64] (Maxwell P and Kaye JA).

D.Legal principles relevant to revocation application

The Bail Act 1997 (Vic) applies to an application for bail by a child, except insofar as it is inconsistent with section 346 of the Children, Youth and Families Act 2005 (Vic).[13]
[13]Children, Youth and Families Act, s 346(6).
In determining an application for revocation of bail in respect of a child, the court is required to take into account the matters listed in section 3B(1) of the Bail Act, including:
…
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
…
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(f)the likely sentence should the child be found guilty of the offence charged; and
(g)the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.

In addition, in interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B, including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.
In making a determination in relation to a child, bail must not be refused on the sole ground that the child does not have any, or any adequate, accommodation.[14] Further, if bail is refused, the court must remand the child in custody to appear before a court at a later date which must not be for a period longer than 21 clear days.[15]
[14]Bail Act, s 3B(3).
[15]Ibid, s 12(4).

E.Consideration of adjournment application

The hearing of the adjournment application concluded shortly before lunch on Friday, 15 December 2023. The parties were informed that I would consider my decision over the weekend and deliver my ruling first thing on Monday morning. The parties were also informed that I would be available over the weekend on short notice to hear any further application any party might wish to make if there were any developments concerning WD’s welfare or safety. No further application was made.
In my view, there are a number of matters that the court must take into account in determining whether or not to revoke bail that have not been properly addressed in the evidence filed to date. No criticism is made in this regard. However, with the strictures that currently govern WD’s circumstances at the Secure Location, in the time available neither the Secretary nor the legal representatives of WD have properly addressed all the matters the court must take into account in determining whether bail ought to be revoked. Orders made on 6 December 2023 already provide for further evidence to be filed with respect to the application in the parens patriae jurisdiction of the court, which evidence is highly likely to touch on many, if not all, of the matters the court is required to take into account.
Further, without in any way understating the obvious challenges faced by WD, the operations manager’s evidence demonstrated that at the time of the hearing of the application for adjournment, there was an ability to continue to care for WD at the Secure Location. So much has been borne out by the absence of any application over the weekend.
In circumstances where the application in the court’s parens patriae jurisdiction will be heard tomorrow, it is appropriate to adjourn the application for revocation of bail for a further day so that both applications may be addressed on the same date.[16] Although this may have the effect of delaying WD’s access to an intensive forensic assessment at the Youth Justice Centre, any such delay would be minimal and, in the scheme of things, inconsequential.
[16]Whether the 2 applications should be heard together or sequentially is a matter that may be addressed tomorrow.
Again, if there are any significant changes in WD’s circumstances in the next 24 hours, an application may be made to the court on short notice.

F. Conclusion

For these reasons, the application for revocation of WD’s bail is adjourned to 10.00am on 19 December 2023.
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[2023] VSC 780

18 December 2023