Citation: R v TW [2024] NSWSC 1504
Court: Supreme Court of NSW
Date: 17 June 2024
Judge(s): Rothman J
Background
The applicant, referred to as TW to protect his identity under legislation prohibiting the publication of identifying information about juveniles, was born in February 2010 and was 14 years old at the time of the hearing. He is of Aboriginal descent and comes from the Moree area. TW faced 23 criminal charges across four sequences, including aggravated break and enter, stolen vehicle offences, participation in a criminal group, and dishonestly obtaining property by deception, allegedly committed across several dates in early to mid-2024.
TW applied to the Supreme Court for bail. The application raised a significant threshold question about the operation of section 22C of the Bail Act 2013 (NSW), which imposes a heightened bail test for young people aged 14 to 18 who are alleged to have committed a "relevant offence" while already on bail for another relevant offence.
Legal Issues
- Whether section 22C of the Bail Act 2013 (NSW) applied to TW and, if so, whether the court could be satisfied to the required "high degree of confidence" that he would not commit a serious indictable offence if released on bail.
- Whether section 22C raises questions about constitutional validity, specifically whether it requires a court to treat relevantly equal persons differently in a manner that may offend the rule of law and the court's constitutional position under section 73 of the Constitution.
- Whether, on the facts and the Youth Justice support programme proposed, bail should be granted.
Decision
Issue 1: The operation and interpretation of section 22C
Rothman J explained that section 22C applies to a "relevant young person," defined as a person aged 14 to 18 at the time of the alleged offence. The provision prohibits a bail authority from granting bail unless it has "a high degree of confidence" that the young person will not commit a serious indictable offence while on bail. His Honour observed that this threshold is more demanding than the "show cause" test applicable to serious charges such as murder, and arguably more onerous than the "exceptional circumstances" test required by Commonwealth legislation for terrorism offences (at [4]-[5]).
Issue 2: Anomalies and constitutional concerns
Rothman J identified several anomalies in the provision's operation. A person who offends at 13 years and 11 months but appears in court at 14 would not be caught by section 22C, while a person who offends at 17 years and 11 months but appears after turning 18 would be. This could mean that a co-offender aged 17 years and 11 months faces a stricter bail test than a co-offender aged 18 years and one month, despite presenting an identical risk (at [6]-[8]). His Honour raised, without deciding, the question of whether requiring a court to treat relevantly equal persons differently and more harshly on the basis of date of birth might offend fundamental rule of law principles and the court's constitutional status as a Supreme Court under section 73 of the Constitution (at [9]-[12]). He also described section 22C as "a ham-fisted attempt to deal with a political difficulty" that "creates significant problems for the administration of justice" (at [16]).
Issue 3: Whether the constitutional question needed to be decided
Because the Crown consented to the level of confidence required and did not contest bail on that basis, Rothman J found it unnecessary to resolve the constitutional question at this stage. He proceeded on the assumption that section 22C applied and was valid, while expressly reserving the question of its validity for another occasion (at [13], [18]).
Issue 4: Whether bail should be granted
On the merits, TW had no prior criminal history. A Youth Justice report proposed a culturally sensitive rehabilitation programme designed to address both TW's motivation and capacity to reoffend. Rothman J stated that, based on that programme and with the Crown's consent, he was satisfied to a high degree of confidence that TW would not commit a serious indictable offence if the programme were implemented (at [16]-[17]). His Honour further found that none of the four bail concerns under sections 17 and 19 of the Bail Act (risk of flight, commission of a serious offence, safety of the community, or interference with evidence or witnesses) gave rise to an unacceptable risk (at [19]). Bail was granted subject to conditions.
Orders Made
- Conditional bail granted across all four sequences of charges.
Key Takeaways
- Section 22C of the Bail Act 2013 (NSW) imposes a "high degree of confidence" standard for granting bail to young people aged 14 to 18 alleged to have offended while on bail, which Rothman J considered more demanding than the show cause and exceptional circumstances thresholds applicable in other serious criminal contexts (at [4]-[5]).
- Rothman J identified significant anomalies in the provision, including that it may require a court to treat co-offenders who present identical risks differently based solely on their age at the time of the alleged offence, which he regarded as potentially incompatible with fundamental rule of law principles (at [8]-[10]).
- A question was left expressly open as to whether section 22C is constitutionally valid, particularly whether it offends the Supreme Court's constitutionally entrenched position under section 73 of the Constitution by requiring it to treat relevantly equal persons differently and more harshly (at [12]-[13]).
- Where Youth Justice proposes a structured, culturally sensitive rehabilitation programme, and the Crown does not contest the requisite level of confidence, that material can satisfy the high degree of confidence test under section 22C (at [16]-[17]).
- In determining bail for an Aboriginal juvenile with no prior convictions, the availability of a culturally appropriate support programme through Youth Justice was central to the court's conclusion that no unacceptable risk existed across any of the four statutory bail concerns (at [19]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Crimes Act 1900 (NSW)
Cases
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Andrews v Law Society of British Columbia [1989] 1 SCR 143