Citation: R v WB [2023] NSWSC 591
Court: Supreme Court of New South Wales
Date: 29 May 2023
Judge(s): Lonergan J
Background
The applicant, a 16-to-17-year-old Aboriginal young person, had been held in custody since 30 April 2023. He faced a series of serious charges, including robbery in company, break and enter, police pursuit, predatory driving, damage to property by fire, and driving offences, said to have arisen from conduct on 29 April 2023. He also faced a separate charge from 24 March 2023.
The charges were at early stages across two Children's Courts, with hearings listed at Dubbo and Walgett over the coming weeks. The applicant had not pleaded guilty to any of the charges, and his legal representatives raised significant questions about the reliability of the identification evidence underpinning several of them.
The bail application came before the Supreme Court. A Youth Justice report had been prepared but, under a 2005 protocol between the Children's Court of New South Wales and Youth Justice, Youth Justice took the position that it could not supervise the applicant because he had not entered guilty pleas or been found guilty.
Legal Issues
- Whether the proposed bail conditions adequately reduced the risk the applicant presented to an acceptable level
- Whether Youth Justice could or should supervise a young person on bail who has not pleaded guilty, given the 2005 protocol
- Whether conditional bail ought to be granted
Decision
Issue 1: Identification evidence and time in custody
Lonergan J accepted that there were significant question marks over the identification evidence supporting the charges arising on 29 April 2023, and similarly in relation to the 24 March 2023 charge (at [4]-[5]). While those issues were matters for another court, they contributed to the court's concern about this young person waiting in custody for a lengthy period before his charges could be heard (at [6]). The court observed that for a young person, focus should be on rehabilitation rather than incarceration (at [6]).
Issue 2: The 2005 protocol and Youth Justice supervision
The court expressed dismay at the position taken by Youth Justice, which had declined to supervise the applicant on the basis of the 2005 bail protocol, offering only what was termed "bail support" instead (at [8], [14]). Lonergan J agreed with views expressed by Yehia J in R v JH [2023] NSWSC 93 and R v JB [2023] NSWSC 94, describing the inflexibility of the protocol as a serious problem (at [11]). Every person is entitled to plead not guilty and to have charges proven beyond reasonable doubt, and young vulnerable accused persons should receive the same level of supervision as those who plead guilty while awaiting the outcome of proceedings (at [16]). The court also noted that a document provided about "Remand Intervention and Bail Services" introduced unhelpful uncertainty about the scope of available services, where clarity was essential for young vulnerable people (at [15]).
Issue 3: Grant of conditional bail
Notwithstanding the concerns about the supervision protocol, the court found that the considerations in the Youth Justice report supported release on the proposed conditions, which would reduce the risk the applicant presented to below the level of unacceptable (at [17]). The applicant's grandparents provided community support, and the applicant had expressed a desire to transition into employment. Bail was granted on detailed conditions including a curfew, residence requirements, a prohibition on occupying the driver's seat of any vehicle, non-contact conditions, and a requirement to comply with Youth Justice recommendations including referral to mental health services.
Orders Made
- Bail granted on the following conditions:
- The applicant is to be of good behaviour
- The applicant is to appear at Dubbo Children's Court and Walgett Children's Court on the dates specified, and thereafter as directed
- The applicant is to reside at a specified Dubbo address and nowhere else
- A curfew applies between 7:00pm and 7:00am, with limited exceptions (company of a Youth Justice nominee, a specified person, or emergency medical treatment)
- The applicant is not to occupy the driver's seat of any motor vehicle or motorcycle, whether turned on or not
- The applicant may only travel from the Juvenile Detention Centre when accompanied by a Youth Justice nominee
- The applicant is not to approach or communicate with specified persons by any means, other than through a legal representative
- The applicant is to comply with Youth Justice conditions and recommendations, including referral to mental health and health services
Key Takeaways
- Lonergan J confirmed the view expressed by Yehia J in two prior decisions that the 2005 bail protocol between the Children's Court and Youth Justice, which restricts supervision to young people who have pleaded or been found guilty, is inflexible and problematic in its operation.
- A young person's right to plead not guilty and to have charges proven beyond reasonable doubt carries equal weight for bail supervision purposes; the court held that young accused persons should not receive a lesser standard of support and supervision merely because they have not entered guilty pleas (at [16]).
- The distinction in available services between "bail supervision" and "bail support" for children who plead not guilty was found to introduce an unacceptable level of uncertainty, where clarity about responsibilities and assistance is essential (at [15]).
- Significant questions over identification evidence, combined with the lengthy period a young person may wait in custody before charges are determined, are relevant considerations in a bail application involving a child (at [4]-[6]).
- Well-trained Youth Justice staff and their detailed reports remain a valuable resource in bail applications even where the protocol limits their formal supervisory role; the court relied on the Youth Justice report in reaching its decision to grant bail (at [17]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- R v JB [2023] NSWSC 94
- R v JH [2023] NSWSC 93