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Supreme Court 26 April 2024

R v RB

[2024] NSWSC 471

Theft & propertyPublic order & justice offences
BAIL ABORIGINAL YOUTH MULTIPLE OFFENCES CLOSE TO AGE 18 S 22C COMMENCED 3 APRIL 2024 APPLICABILITY TO THE OFFENDING

Citation: R v RB [2024] NSWSC 471
Court: Supreme Court of New South Wales
Date: 26 April 2024 (reasons published; bail granted 16 April 2024)
Judge(s): Lonergan J

Background

RB is an Aboriginal young person under the parental responsibility of the Minister, approximately four months from turning 18 at the time of the decision. He had accumulated a significant number of charges involving break and enter offences and motor vehicle theft, some of which had already resulted in not guilty findings, while others remained part-heard or subject to ongoing negotiations. He had been in custody since 26 February 2024, his most recent arrest arising from alleged offending in the early hours of that morning.

NSW Police identified RB as a primary offender in a pattern of vehicle theft and break-and-enter offences, establishing a dedicated strike force that included telephone intercepts and search warrants. Despite this scrutiny, RB had engaged constructively with support services, including KARI (an Aboriginal support service) for case management, and had recently commenced employment arranged through contacts made at Cobham Youth Justice Centre. That employment was cut short by his arrest.

The bail application required the Court to consider whether RB posed unacceptable risks that could be addressed by conditions, whether the newly enacted section 22C of the Bail Act 2013 (NSW) applied to his situation, and whether that provision raised serious concerns about its consistency with children's legislation and discrimination law.

  • Whether RB posed unacceptable bail risks, and whether proposed conditions could sufficiently mitigate those risks to justify release
  • Whether section 22C of the Bail Act 2013 (NSW), which commenced on 3 April 2024, applied to RB's alleged offending, which occurred entirely before that date
  • Whether section 22C is in tension with the Children (Criminal Proceedings) Act 1987 (NSW), including the statutory objects in sections 4 and 6 of that Act
  • Whether section 22C may operate in a manner that is unfairly discriminatory against children, by imposing a more onerous test than that applicable to adults in comparable circumstances
  • The weight to be given to NSW Police letters expressing generalised opinions about whether a person should be released on bail

Decision

Section 22C does not apply to RB. The Crown accepted, and the Court agreed, that section 22C was not engaged because all alleged offending, both the conduct for which RB was previously granted bail and the February 2024 offending, occurred before the provision commenced on 3 April 2024. The section is directed at offending committed while a young person is on bail for another relevant offence, and the temporal requirement was not satisfied here. No further relevant offence had been committed after commencement.

Bail was granted on conditions. The Court accepted that the various services actively engaged with RB, including KARI and his employment connection, along with his proximity to turning 18, were relevant to the bail assessment. The Court found that proposed conditions could sufficiently address the identified risks and released RB on conditional bail on 16 April 2024.

Concerns about the strength of the prosecution case for the February 2024 charges were also noted. The Crown case in respect of some of those charges relied partly on CCTV footage said to show RB wearing a face mask and particular clothing, but the person depicted appeared fair-skinned, while the Court observed that RB has a dark complexion. The Court acknowledged other circumstantial elements existed, but described the case as one requiring multiple inferences.

The Court expressed significant concerns about section 22C despite not needing to apply it. Lonergan J observed that the "high degree of confidence" test is a standard unknown to criminal law, with no statutory guidance as to its meaning. The Court noted the provision singles out children accused of particular offences and imposes a more demanding test than that which applies to adults facing show-cause requirements, even adults accused of very serious offences including those punishable by life imprisonment. Adults facing show-cause are not required to satisfy any court to a "high degree of confidence" on any question. This disparity was identified as a potential breach of section 14 of the Age Discrimination Act 2004 (Cth) and as incoherent with the obligations imposed on bail courts by sections 4 and 6 of the Children (Criminal Proceedings) Act 1987. The Court also criticised police letters that expressed generalised opinions about whether RB should be released, rather than setting out facts, citing the Court of Criminal Appeal's guidance in DPP (NSW) v Mawad [2015] NSWCCA 227.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Section 22C of the Bail Act 2013 (NSW) does not apply where all alleged offending predates the provision's commencement on 3 April 2024; the section requires that a relevant offence be committed while the young person is already on bail for another relevant offence, both occurring after commencement.
  • The Supreme Court identified the "high degree of confidence" test in section 22C as a standard unknown to Australian criminal law, with no legislative guidance on its application, creating a real risk of uneven and inconsistent judicial outcomes.
  • A children's bail court retains obligations under sections 4 and 6 of the Children (Criminal Proceedings) Act 1987 that sit in direct tension with section 22C's requirement to withhold bail unless a court reaches near-certainty that no further serious indictable offence will be committed, a threshold not imposed on adults in comparable or more serious circumstances.
  • Section 22C was identified as potentially engaging the prohibition on age discrimination in section 14 of the Age Discrimination Act 2004 (Cth), because it treats children accused of certain offences less favourably than adults accused of offences in the same circumstances.
  • Police letters that express opinions about whether a person should be released, framed in generalities rather than facts, carry little weight in bail proceedings; Lonergan J reaffirmed the approach in DPP (NSW) v Mawad that such letters are not a proper basis for a bail decision.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), including s 22C (inserted by the Bail and Crimes Amendment Act 2024 (NSW))
- Bail and Crimes Amendment Act 2024 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 6, 31(3), 33
- Crimes Act 1900 (NSW), ss 154A, 154C, 154F, 154K
- Age Discrimination Act 2004 (Cth), s 14

Cases:
- Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70
- Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
- Gurin v R [2022] NSWCCA 193
- Harvey v Minister for Primary Industry and Resources (2024) 98 ALJR 168; [2024] HCA 1
- R v A2; Magennis; R v Vaziri (2019) 269 CLR 507; [2019] HCA 35
- R v Lago [2014] NSWSC 660
- Raad v R [2015] NSWSC 532
- State of NSW v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86