TM v AH - [2014] VSC 560

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0166

IN THE MATTER of an Application for Bail by TM (a child)

Between:

TM (a child)	Applicant
and
AH & Ors (police officers)	Respondents

---

JUDGE:	CROUCHER J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2014
DATE OF JUDGMENT:	5 November 2014
CASE MAY BE CITED AS:	TM v AH & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 560	First revision: 18 February 2015

---

CRIMINAL LAW - Application for bail by Aboriginal boy aged 14 with intellectual disability – Applicant refused bail by magistrate pending appeal against ten-month sentence of detention in youth residential facility and in respect of several other charges for offences, some of which allegedly committed while on bail – Whether applicant has shown cause why detention not justified – Whether respondents have shown an unacceptable risk of offending on bail – Bail granted on own undertaking with conditions including as to residence, a curfew, a prohibition on driving a motor vehicle and compliance with directions of the Department of Human Services.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms D. Caruso	Victorian Aboriginal Legal Service
For the Respondent	Mr J. Kibel	Victoria Police Legal Services Department

HIS HONOUR:

Introduction

“TM”[1] is a 14-year-old boy of Aboriginal heritage. On 31 October 2014, I heard TM’s application for bail in respect of numerous charges. At that time, I indicated I would grant bail today, 5 November 2014, albeit on restrictive conditions. My reasons for that decision and the proposed orders follow.
[1] Section 534(1) of the Children, Youth and Families Act 2005 (Vic) provides inter alia that a person must not publish or cause to be published, except with the permission of the President of the Children’s Court, a report of a proceeding in that court, or of a proceeding of any other court arising out of a proceeding in that court, that contains particulars likely to lead to the identification of (i) the particular venue of the Children’s Court in which the proceeding was heard, (ii) a child or other party to the proceeding or (iii) a witness in the proceeding. Section 534(4) deems various particulars as likely to lead to the identification of a person. In conformity with s 534, the child in this case is described as TM; and the various police informants, witnesses, other persons and other relevant pieces of information will be described elliptically as well.

Background

TM did not get much of a start in life. He was born in a youth detention centre in Melbourne. He does not know the identity of his father. His mother was only 16 at the time of his birth – not much older than he is now. She had been detained on charges of criminal offending arising out of a car accident in which two of her passengers were killed.

TM’s luck did not improve. He is intellectually disabled. While opinions vary, his IQ has been estimated at…

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 TM v AH

Details

AGLC: TM v AH [2014] VSC 560
Case: [2014] VSC 560
Decision Date: 5 November 2014

CaseChat Overview and Summary

In the case of TM v AH, the applicant, a 14-year-old Aboriginal boy with an intellectual disability, applied for bail while his appeal against a ten-month detention sentence in a youth residential facility was being heard. The applicant was also subject to several other charges for offences, some of which were alleged to have been committed while on bail. The respondents opposed the bail application, arguing that the applicant had not demonstrated sufficient cause why detention was not justified and that there was an unacceptable risk of reoffending if he were released on bail. The court was tasked with determining whether the applicant had made out a case for bail and whether the respondents had demonstrated an unacceptable risk of the applicant offending if released.

The court considered the principles governing bail applications, particularly in the context of young offenders with disabilities. It assessed the applicant's likelihood of reoffending, his history of offending, and the impact of detention on his welfare and rehabilitation. The court also took into account the severity of the alleged offences, the applicant's intellectual disability, and the risk to the community if he were released on bail. Ultimately, the court concluded that the applicant had demonstrated sufficient cause for bail and that the respondents had not shown an unacceptable risk of reoffending. Consequently, the court granted bail on the applicant's own undertaking, imposing conditions including restrictions on residence, a curfew, a prohibition on driving a motor vehicle, and compliance with the directions of the Department of Human Services.

The court's decision was based on a careful assessment of the evidence and the principles of justice and fairness in the context of bail applications for young offenders with disabilities. The court recognised the importance of protecting the welfare and rehabilitation of the applicant while also considering the safety and interests of the community. The court's decision was informed by a nuanced understanding of the applicant's circumstances and the potential consequences of granting or refusing bail. The outcome reflects the court's commitment to balancing the rights and needs of the applicant with the broader considerations of public safety and justice.

The final orders of the court included the grant of bail on the applicant's own undertaking, subject to the specified conditions. The applicant was required to reside at a specified address, observe a curfew, refrain from driving a motor vehicle, and comply with the directions of the Department of Human Services. These conditions were designed to mitigate the risk of reoffending and to ensure the safety and welfare of the applicant and the community. The court's decision provided a balanced and proportionate response to the complex issues presented in the case, reflecting a thoughtful consideration of the applicant's unique circumstances and the broader principles of justice and fairness.

Orders