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[2017] VSC 1
Supreme Court of Victoria
2017-01-06
ELLIOTT J
Original judgment source is linked above.
18. The applicant had a visit from his legal representative.
89 In addition, the informant with respect to the most recent charges swore a further affidavit which corroborated various matters deposed to by Jacques.
90 Before continuing with the further evidence in opposition, it is necessary to refer to the Interim Ruling and the reference to an allegation that the applicant had threatened to rape a female staff member. In the Interim Ruling,[29] some significance was attached to the fact that, unlike other matters the subject of Jacques' evidence, this allegation was not the subject of any cross-examination or other challenge at the hearing of the application.
91 During the course of Jacques' cross-examination on 21 December 2016, it was put to Jacques, and he accepted, that the applicant had consistently denied this allegation.[30] When I enquired as to why it was that it had not been challenged on the previous occasion, the applicant's counsel informed the court that the evidence had arisen on the run and that he was without instructions. Accordingly, for the purposes of finally determining this matter, I will proceed on the basis that any allegations referable to this subject matter are in dispute.[31]
92 On 5 January 2017, Jacques swore a further affidavit which was largely confirmatory of the matters of which he deposed in his 16 December 2016 affidavit. In addition, Jacques stated that Barwon Children's Remand Centre had been "necessarily opened quickly" and, when first established, the infrastructure was "less than optimal". Jacques said that since that time there had been significant improvements, and that the services available to, and responses to, the residents accommodated there had improved.
93 The improvements since 16 December 2016 included the following:
(3) Video conferencing facilities, enabling residents to speak to family members and their legal representatives.
(4) A colourbond fence around the perimeter of the remand centre for the purposes of maintaining the residents' privacy.
(5) A dedicated classroom for education programs, as well as movie nights.
(6) A multi-purpose consultation room for residents to use, including with their legal representatives, cultural support workers and other providers of services.
94 Jacques also noted that, in his earlier affidavit, he failed to refer to the fact that religious and cultural dietary requirements of the residents are catered for.
95 From 28 December 2016 to 2 January 2017, only approximately 1 hour per day of classes were available because of the time of year. From 3 January 2017, education classes were recommenced at 5 hours a day, but under a "modified program" given the holiday season. As to the future, it was intended that the hours of education classes would increase from 5 hours a day to 6 hours a day from 30 January 2017. Further, a range of equipment for education purposes, including iPads, keyboards and music recording equipment was intended to be provided within a matter of days.[32]
96 During cross-examination on 21 December 2016, Jacques acknowledged that, contrary to the position at Parkville, the dedicated classroom at Barwon Children's Remand Centre was not a registered school. This meant that there was no accreditation towards the formal education of the residents at Barwon Children's Remand Centre. Jacques also acknowledged that, again in contrast to Parkville, there were no vocational programs offered at Barwon Children's Remand Centre, and that such programs were unlikely to be introduced.
97 In his most recent affidavit, Jacques deposed that the education program has now been improved and formalised. A memorandum of understanding has been entered into with the Secretary to the Department of Health and Human Services and the Secretary to the Department of Education and Training for the provision of an education program to be delivered at Barwon Children's Remand Centre. Although there are differences to what is offered at Parkville, according to Jacques, the number of hours of education is consistent with what is provided at Parkville.
98 In contrast to the previous position, residents will now be able to claim credit for their studies towards secondary qualifications. However, Jacques accepted during cross-examination that the position remains that there is no registered school at Barwon Children's Remand Centre. Further, Jacques could not say whether the accreditation achievable was at the same level as Parkville.
99 In his evidence on 21 December 2016, Jacques stated there was no intention to increase the number of residents at Barwon Children's Remand Centre. Jacques has confirmed that the number of residents as at 5 January 2017 remained at 15. However, in giving evidence in court today, he stated that 2 new residents had been located at Barwon Children's Remand Centre.
100 Jacques gave evidence of the present situation at Parkville and Malmsbury concerning the number of beds available in secure rooms. Parkville presently has 63 available beds in secure rooms, with 71 high risk clients. This has resulted in 8 clients sleeping in isolation rooms or holding cells. Malmsbury presently has 45 beds in secure rooms, with 47 high risk clients. Two of those clients are being housed in isolation rooms.
101 It follows that for children on remand, there are no available secure beds presently at Parkville or Malmsbury.
102 Jacques also gave evidence of the applicant's conduct at Barwon Children's Remand Centre from 19 December 2016 until 4 January 2017. It is unnecessary to go into detail with respect to these matters. For present purposes, it suffices to say that after being classified for a period of time from 22 December 2016 as having a "gold" level of behaviour under a program promoting positive behaviour,[33] the applicant has allegedly lapsed into conduct which has been seriously threatening to staff and other residents, and destructive of a significant number of items of property at Barwon Children's Remand Centre. The matter has been referred to police. The court was informed it is expected charges will be laid.
103 Jacques could not say what medication the applicant was taking at the time, or whether the absence of medication might explain the applicant's conduct. The applicant did not seek to include any psychiatric or other medical evidence on this issue.
104 Whilst the applicant had no obligation to respond to such possible allegations, his counsel acknowledged there was "an incident" involving the applicant. Photographic evidence was before the court which showed the damage was substantial and widespread. The court was also informed there is closed circuit television footage of the alleged events (though that evidence was not before the court).
105 During cross-examination today, Jacques frankly acknowledged that when he arrived at Barwon Children's Remand Centre things were "chaotic". This is no doubt a reflection of the findings made in Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children, as follows:[34]
I find that the right in s 10(b) of the Charter is engaged. There is evidence that one or more young persons have, or may have, been subject to a breach of s 10(b) by reason of the harsh conditions at the Grevillea unit of the Barwon Prison at least in the first two weeks of its occupancy as a remand centre including:
(a) very long periods of solitary and prolonged confinement of young people in cells formerly used for high security adult prisoners;
(b) uncertainty as to the length and occurrence of lockdowns;
(c) fear and threats by staff against young persons;
(d) the use of SESG[35] inside the Grevillea unit, including German Shepherd dogs;
(e) the use of handcuffs on young people when moving to outdoor areas;
(f) the noise of loud banging on the doors or screaming;
(g) the failure to advise young people of their rights or the rules of the centre;
(h) the general lack of space and amenities for young persons and the limited opportunity to use the space and amenities available;
(i) the absence or very limited opportunity for education or other pursuits; and
(j) the absence of family visits or access to religious services or advisers.
Save for the last of these matters, the applicant relies on these findings of Garde J in this application.[36]
106 The applicant's solicitor and counsel attended at Barwon Children's Remand Centre on 16 December 2016. The applicant's solicitor gave affidavit evidence of the visit, including attending a conference with the applicant held in the classroom. The applicant's solicitor stated that, at that time, the classroom consisted of 1 table in the middle of the room with 3 chairs around it and a further table pushed up against the wall with 4 chairs stacked next to it. The classroom also had a whiteboard. Further, the materials in the classroom comprised a dictionary, a thesaurus, 2 non-fiction books placed on the ground, 3 folders and a number of "loose worksheets" on the ground.
107 Because of the noise of instruments, table tennis and the interaction of the residents and staff on the Side A unit floor, it was difficult to maintain a conversation with the applicant. The solicitor observed that, at that time, the classroom was also used to facilitate video conferencing for court proceedings. The conference with the applicant was cut short so that the video conferencing equipment could be brought in and set up.
108 During the course of the conference, the applicant informed the solicitor that:
(1) The teachers arrive around 9 am and leave in the afternoon.
(2) Structured lessons are not provided in the classroom or on the unit floor of Side A. According to the applicant, the teachers provide worksheets but they primarily play cards or table tennis, and talk with the residents rather than provide formal education.
(3) The worksheets provided to the applicant are of a grade 7 or 8 level and do not challenge him.
(4) The applicant does not have access to a computer or iPad for learning purposes.
(6) There are 2 guitars and a ukulele available for music classes (the applicant cannot play these instruments).
(7) Colouring books are provided as art classes. The applicant enjoys art and it is important to him but colouring books do not enrich him.
(8) The outdoor gym workouts are provided as physical education classes.
109 During the discussions with the applicant, his solicitor and counsel were shown the outdoor area. The applicant had to be handcuffed and escorted by 2 staff members to access this area. The applicant informed the solicitor that only 6 children were allowed outside at any 1 time and that there were no basketballs available as they had become stuck in the barbed wire roof.
110 The applicant also informed the solicitor that he had been on a Management Plan since 11 December 2016 and that he had been on "23 hour lockdown" since that time. Accordingly, he was only being released from his cell for 1 hour each day.
111 With respect to the allegation made that the applicant threatened to rape a female staff member, the applicant denied the allegation.[37] The applicant admitted he verbally abused the staff member in question, but said he never made this specific threat to her or anyone else. In addition to responding to various other matters, the applicant stated that:
(1) The allegation that he threatened to rape a female staff member was reported on televised news that he and other residents watched and that this had caused him great distress.
(2) He had been thinking about his experience in Africa where he witnessed multiple people being murdered and dead bodies in the street.
(3) He had trouble sleeping at night and he could hear adult prisoners yelling over the walls.
(4) He had not seen his mother or other family members.
(5) Since the time of the events involving the staff member referred to in the chapeau above, he had not seen a doctor or a psychologist.[38]
112 In addition, the applicant's solicitor gave evidence of certain matters that are the subject of the Suppression Order.[39]
E. Observations on conditions under which the applicant is being held
113 The state of the evidence concerning the conditions at Barwon Children's Remand Centre, both generally and also specifically with respect to the applicant, is concerning. Although there has been progressive improvement over time, there can be little doubt that the conditions at Barwon Children's Remand Centre are far from ideal.
114 Barwon Children's Remand Centre was built to be an adult prison. The overwhelming impression given from the building and its surrounds is that Barwon Children's Remand Centre is an adult prison and not a centre for holding children on remand, notwithstanding it now is a remand centre for the purposes of the Children, Youth and Families Act. Given the location, structure and surrounds of Barwon Children's Remand Centre, it is difficult to envisage that, whatever measures are taken with respect to programs and other resources that might be made available to the residents, this distinct impression will materially change.
115 Further, the manner of operation of Barwon Children's Remand Centre from late November 2016 to at least 19 December 2016 suggests little by way of measures being taken with respect to rehabilitation. It would seem that the promise of further facilities and resources in the future for the residents is an acknowledgment that, at least until 19 December 2016, the situation was less than satisfactory.
116 That said, it is important to keep in mind the role of the court on an application such as this. As I explained in the Interim Ruling,[40] there is a direct relationship between the provisions of the Charter and the Bail Act, and the conditions under which the applicant is being held is relevant to the outcome of the application. However, as the Court of Appeal expressly acknowledged, it is not the role of the court to concern itself with the merits of the decision to establish a youth detention centre at Barwon Prison.[41]
F. Position adopted with respect to the Charter
117 In the Interim Ruling, the following was stated:[42]
In the circumstances, for the purposes of determining this application only, and without making an actual finding, I will proceed on the assumption that since the applicant's detention at Barwon Children's Remand Centre:
(1) His right, without discrimination, to such protection as is in his best interests and is needed by him by reason of being a child has been infringed, in contravention of s 17(2) of the Charter.
(2) While deprived of his liberty at Barwon Children's Remand Centre, he has not been treated at all times with humanity and with respect for the inherent dignity of a human person, in contravention of s 22(1) of the Charter.
(3) Whilst detained at Barwon Children's Remand Centre he has not at all times been treated in a way that is appropriate for a person who has not been convicted, in contravention of s 22(3) of the Charter.
The assumptions made do not include any reference to s 25(3) of the Charter. The applicant did not make any specific submission that any procedure had been infringed for the purposes of that provision.
118 On 21 December 2016, in contrast to the previous position adopted, the applicant's counsel made submissions to the effect that there had been a contravention of s 25(3) of the Charter. It was submitted that bail and remand were part of the pre-hearing criminal procedure, and, therefore, the applicant had a right to a remand and bail procedure which takes account of his age and the desirability of promoting his rehabilitation. No specific submission was made as to the meaning of "a procedure" for the purposes of s 25(3) of the Charter, beyond submitting that remand itself was a procedure and it followed that "the environment in which [the applicant] is held, the services which are made available to him whilst on remand, the access to education, medical treatment and so on, all form part of the remand procedure".
119 Further, no submission was made with respect to the obvious tension between a child being on remand and therefore presumed to be innocent, and a child needing to be the subject of rehabilitation.
120 The Attorney-General intervened in this application to make submissions with respect to the Charter.[43] After the Interim Ruling, the Attorney-General made further submissions, some of which gave useful background and analysis of the provisions of the Charter in question. In the circumstances, it is appropriate to elaborate on the meaning and scope of these provisions.
F.3.1 Section 17(2)
121 Section 17(2) of the Charter provides in general terms for the right of every child, without discrimination, "to such protection as is in his or her best interests and is needed by him or her by reason of being a child". Section 17(2) is modelled on,[44] but not identical to, art 24(1) of the International Covenant on Civil and Political Rights ("the Covenant").[45] It is also similar to art 3(1) and (2) of the Convention on the Rights of the Child ("the Convention").[46]
(1) Separate facilities are established for children deprived of their liberty, which include distinct, child-centred staff, personnel, policies and practices.
(2) The child's right to maintain contact with her or his family, including by placing the child in a facility as close as possible to the place of the family's residence in order to facilitate visits.
(3) A physical environment and accommodation in keeping with the rehabilitative aims of residential placement, with due regard given to the child's need for privacy, sensory stimuli, opportunities to associate with peers, and to participate in sports, physical exercise, arts and leisure time activities.
(4) Every child of compulsory school age has a right to education suited to her or his needs and abilities, and designed to prepare her or him to return to society, and that every child should receive, where appropriate, vocational training in occupations likely to prepare her or him for future employment.
(5) Every child receives adequate medical care throughout her or his detention, provided, where possible, by health facilities and services of the community.
(6) The promotion and facilitation of frequent contact of the child with the wider community, including communications with family, friends and other persons or representatives of reputable outside organisations, and the opportunity to visit her or his home and family.
(7) Any disciplinary measure is consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care, and that corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child be strictly forbidden.
123 Although "best interests" is not defined in the Charter, some guidance on its content is provided by the equivalent term under Victorian legislation and international human rights law. In particular:
(1) Section 10 of the Children, Youth and Families Act sets out "best interests principles" that decision-makers must have regard to when making decisions under the Act[49] (other than decisions concerning children and the criminal law made under Chapter 5 or Chapter 7 of the Children, Youth and Families Act[50]). Section 10(2) requires that "[w]hen determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development ... must always be considered". Section 10(3) provides a further list of considerations relevant to the question of what is in a child's best interests in decisions made under the Act. To a significant extent, these considerations are reflected in s 3B of the Bail Act.
(2) At international law, what is in a child's best interests will depend on the individual circumstances of the child, and the particular decision being made.[51]
124 Section 22(1) of the Charter provides that: "[a]ll persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person".
125 In Castles v Secretary to the Department of Justice,[52] Emerton J stated that, in analysing the scope of s 22(1) of the Charter, "the starting point should be that prisoners not be subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty".[53] However, her Honour noted that a necessary consequence of the deprivation of liberty was that "[r]ights and freedoms which are enjoyed by other citizens will necessarily be 'curtailed', 'attenuated' and 'qualified' merely by reason of the deprivation of liberty".[54]
126 In De Bruyn v Victorian Institute of Forensic Mental Health,[55] Riordan J considered comparative jurisprudence on the right to humane treatment when deprived of liberty.[56] His Honour noted[57] that the New Zealand Supreme Court had considered such matters in Taunoa v Attorney-General.[58] He referred to the judgment of Blanchard J in that case,[59] who described the purpose of the right as:[60]
protecting a person deprived of liberty and therefore particularly vulnerable (including a sentenced prisoner) from conduct which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so.
127 While the scope of s 22(1) of the Charter, and its potential limitation, has not been considered in any detail by this court against particular facts of detention, concern has been expressed that certain conditions of detention may fall short of the standard required by s 22(1). For example, in Dale v Director of Public Prosecutions,[61] the Court of Appeal noted that the conditions of detention of a dangerous prisoner, which included solitary confinement, strip searches and shackling with leg irons when out of the unit, might raise questions under s 22(1), though it declined to express a view on the matter.[62] The discussion concluded[63] by referring with approval to a passage from the decision the subject of appeal:[64]
The fact remains that, if it be the case that unconvicted members of our society must be detained, they must be provided with accommodation which suits the requirements of their detention. Unlike a sentenced prisoner, they are not undergoing punishment. It is for this reason not appropriate that they be detained with prisoners undergoing sentence.
128 Section 22(3) of the Charter provides that: "[a]n accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted".
129 Section 22(3) must be construed within the broader context of s 22. Section 22(1) provides the general right of all persons deprived of liberty to be treated with humanity and dignity. Section 22(3) has a different and narrower scope. It extends beyond segregation from convicted prisoners (which is provided by s 22(2) of the Charter) to "appropriate" treatment. It requires differential treatment that emphasises a person's status as an unconvicted person who enjoys the right to be presumed innocent.[65]
F.3.4 Section 25(3)
131 Section 25 of the Charter protects a range of rights applicable to persons charged with a criminal offence, which have been described as the elements that a "fair hearing" requires.[68] Section 25(3) provides that: "[a] child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting a child's rehabilitation".
132 Section 25(3) is modelled on art 14(4) of the Covenant.[69] It is generally accepted that, so far as possible, juveniles should not be detained before trial.[70] This is reflected in s 3B(1)(a) of the Bail Act. Comparative authority on equivalent protections suggest that s 25(3) requires a detained child to be treated in a manner consistent with the promotion of the child's dignity and worth, including through measures to ensure the child understands and is able to effectively participate in the criminal process.[71] These principles should be applied "throughout the entire process of dealing with the child, from the first contact with law enforcement agencies all the way to the implementation of all measures for dealing with the child".[72]
133 As noted above,[73] circumstances pertaining to the establishment of Barwon Children's Remand Centre and the infringement of certain rights under the Charter have been the subject of findings by Garde J, which are to be the subject of review by the Court of Appeal in due course. In circumstances where it is not strictly necessary for me to make findings with respect to the Charter in order to dispose of this application, I will proceed on the same basis that I did when making the Interim Ruling without making any actual findings concerning any contravention of the Charter.
134 In summary, I will proceed on the assumption that since the applicant's detention at Barwon Children's Remand Centre each of his rights under ss 17(2), 22(1) and 22(3) have been contravened as set out in paragraph 78 of the Interim Ruling. Further, in light of the applicant's further submissions, without making an actual finding I will proceed on the assumption that the applicant's right under s 25(3) of the Charter to a procedure that takes into account his age and the desirability of promoting his rehabilitation (to the extent it might be applicable[74]) have also been contravened.
G. Recent developments with respect to present charges
135 Details of the charges the applicant is presently facing are set out in the Interim Ruling.[75] Since the time the Interim Ruling was made, the resolution of the charges has progressed substantially.
136 With respect to the first set of charges,[76] the applicant will plead guilty to robbery (pursuant to s 75(1) of the Crimes Act 1958 (Vic)), being the robbery of a phone, and assault in company (pursuant to s 24(2) of the Summary Offences Act 1966 (Vic)), on the basis of a single punch to the victim's stomach. All other charges, including the charge of armed robbery, are to be withdrawn.
137 With respect to the later charges concerning the theft of a motor vehicle (pursuant to s 74 of the Crimes Act),[77] the applicant will plead guilty to both charges on the basis that he was a passenger in the car.
138 With respect to the charges concerning unlawful assault and wilful damage (both under the Summary Offences Act),[78] the applicant will plead guilty.
139 With respect to the charge of theft of a motor vehicle (pursuant to s 74 of the Crimes Act),[79] the applicant will plead guilty on the basis that he was a passenger in the car.
140 In relation to the charges involving theft from a shop (pursuant to s 74 of the Crimes Act),[80] the applicant will plead guilty to both charges.
141 As to the last set of charges,[81] the court was informed that negotiations are continuing, and that, although there is still some prospect of resolution, it will still take some time in light of ongoing investigations by police. For convenience, those charges are:
(4) Committing an indictable offence whilst on bail.
143 As explained in the Interim Ruling, there is some controversy as to the correct approach to be taken in this situation.[84] However, as before, the consideration of the Crown's obligation to discharge its onus of establishing that the applicant is an "unacceptable risk",[85] whether as part of the show cause test or separately, results in the same outcome.
144 The hearing of this bail application has been unusually protracted in light of the unique circumstances surrounding the lawfulness of the detention of the applicant. However, in substance, much of the evidence relevant to the consideration of whether or not the applicant has shown cause, including whether or not he represents an unacceptable risk, has remained unchanged.
145 That said, the focus of the relevant considerations has shifted somewhat. When asked by the court as to what charges would justify the applicant remaining on remand given the resolution of several of the charges reached to date, reliance was placed by the informant upon the most recent charges, together with the allegations of misconduct of the applicant earlier this week.
146 With respect to the outstanding existing charges, it is the charge of armed robbery that is essentially relied upon by the informant. As noted in the Interim Ruling,[86] there are some serious difficulties with identification evidence of the 3 witnesses in question. More recently, these difficulties have been compounded by those 3 witnesses being unable to positively identify the applicant from a photo board identification process conducted by the police. However, I also refer to the concession made on the previous occasion that there was "a reasonably strong circumstantial case" with respect to the charge of the theft of a motor vehicle. This is also sought to be relied upon by the informant in establishing the applicant's involvement in the armed robbery.[87]
147 Regrettably, there has been delay in obtaining records in relation to mobile phone records. Those records are expected to be available by the end of the month. The informant sought to inform the court from the bar table as to the state of the investigations to seek to strengthen the status of the case, but this was not the subject of any evidence. However, on reflection, it was accepted that this approach was not appropriate.
148 Accordingly, the extent of the evidence with respect to mobile records is as per the statement made by the informant which demonstrates that call records that have been made available around the time of the armed robbery show that the applicant was in the Collingwood, Carlton and Abbottsford areas on 10 September 2016 when the armed robbery allegedly took place in Fitzroy, and in Dandenong on 12 September 2016, at the time the stolen vehicle allegedly was left in that suburb. Accordingly, the state of the evidence presently is that the call records are consistent with the particulars of the charge, but are not highly probative.
149 With respect to the allegations made of the applicant's conduct this week, it appears there is a strong case against the applicant that he has committed assaults and caused significant property damage. Further, the allegations and the evidence available strongly suggests that the applicant presently is in a volatile and unstable state of mind. Although some of the evidence shows that in recent times he has been capable of behaving well, the evidence also suggests that the applicant has repeatedly behaved inappropriately towards staff and fellow residents since 22 December 2016, and perhaps before then.[88]
150 All of the charges, except those referred to in paragraph 141 above, are listed to be heard in the Children's Court next Tuesday, 10 January 2017. The applicant's counsel indicated that a supervisory order would be sought on that occasion with respect to each of the charges that are said to be the subject of a guilty plea. No agreed view was expressed as to the prospects of such a position, but the applicant submitted that there would be little point in adopting this position if the applicant remained on remand with respect to the remaining charges. As such, it was possible that the matters would be adjourned to the contested committal at the end of January 2017.
151 That said, the court was informed by the Attorney-General's counsel that if a custodial sentence was imposed next Tuesday, the applicant would be treated as a sentenced child rather than a child on remand. The court was further informed that, if such a course were to eventuate, the applicant would be transferred from Barwon Children's Remand Centre to Malmsbury.
152 I refer to my reasons in the Interim Ruling, including considerations of the factors referred to in s 3B of the Bail Act.[89] I will not repeat those reasons here. Having considered all the evidence, including the evidence made available on the view, and the improvements that have been made since that time, I continue to have misgivings about the conditions under which the applicant is, and has been, detained. Notwithstanding those misgivings, and taking into account the human rights of the applicant and proceeding on the assumption that they have been and continue to be contravened, in my view the evidence demonstrates the Crown has discharged the onus of establishing the applicant is an unacceptable risk of committing offences whilst on bail, or endangering the safety or welfare of members of the public.[90] In short, the seriousness of the remaining charges, and the recent violent and volatile conduct of the applicant mean that the relevant risk remains unacceptable. Further, the past and present conditions imposed upon the applicant do not result in that risk being characterised as an acceptable risk.
153 In light of the above matters, the applicant has failed to show cause as to why his detention in custody is not justified.
154 Accordingly, the application for bail is refused.
[1] Application for bail by HL [2016] VSC 750.
[2] A pseudonym, given the applicant's age.
[4] See Evidence Act 2008 (Vic), s 54.
[10] Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343 (Warren CJ, Maxwell P and Weinberg JA).
[13] Minister for Families and Children, "Revocation of Order Establishing a Remand Centre", Victorian Government Gazette, No S403_,_ 29 December 2016, 1. See also Interim Ruling, [23].
[14] Minister for Families and Children, "Establishment of a remand centre in Victoria", Victorian Government Gazette, No S403_,_ 29 December 2016, 2. At the same time, there was a revocation and re-establishment of Barwon Children's Remand Centre as a youth justice centre: Minister for Families and Children, "Revocation of order establishing a youth justice centre" and "Establishment of a youth justice centre", Victorian Government Gazette, No S403, 29 December 2016, 1 and 3 respectively. The court was informed that these Orders in Council were made between approximately 4.00 pm and 4.15 pm on 29 December 2016.
[15] For the purposes of this application only, and without prejudice to any rights he may have, the applicant does not challenge the lawfulness of the Orders in Council made on 29 December 2016.
[16] Originally the matter was listed for 4 January 2016 (with a direction for the informant to file and serve further evidence by 10 am on 3 January 2016), but, because of the unavailability of counsel, the matter was relisted for 6 January 2016.
[17] See at [2]-[34], [42]-[55] and [73]-[77].
[25] A sterile area is a prisoner-free area within the prison.
[26] To this extent, this evidence is inconsistent with evidence previously given by Jacques on 7 December 2016 that "medical [staff] are there 24/7".
[27] An induction session was held on 1 December 2016 to determine the current levels of education attainment by each resident.
[28] CRIS stands for Client Relationship Information System.
[33] Jacques gave evidence of a 3 tier "promoting positive behaviour program", under which gold is the highest level achievable. Silver is awarded for standard acceptable behaviour and bronze for general behaviour less than that.
[34] [2016] VSC 796, [169] (Garde J). See also [178].
[35] Security and Emergency Services Groups of Corrections Victoria at Barwon Prison.
[36] There was no objection to this approach, but submissions were made, in opposition by the Attorney-General, to the effect that it is the present circumstances and those in the reasonably foreseeable future, rather than those in the past that are the relevant circumstances. It is unnecessary to address this for the purpose of determining this application.
[37] See Interim Ruling, [48] and [51].
[38] Jacques stated on 21 December 2016 that the applicant had made an appointment, but later told his unit supervisors that he no longer wanted to keep the appointment.
[39] Although these matters are not expressly referred to, they have been taken into account in determining the application.
[41] Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343, [10] (Warren CJ, Maxwell P and Weinberg JA).
[44] Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic), 14.
[45] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[46] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
[47] Ibid, art 37(c), however, with respect to Australia, the following reservation was made: "Australia accepts the general principles of article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by article 37(c)." See also United Nations Committee on the Rights of the Child, General Comment No. 10: Children's Rights In Juvenile Justice, 44th sess, UN Doc CRC/C/GC/10 (25 April 2007) ("Convention General Comment No. 10"), [85].
[48] Convention General Comment No. 10, [85], [87] and [89].
[51] See United Nations Committee on the Rights of the Child, General Comment No. 14: The Right of a Child to have his or her Best Interests Taken as a Primary Consideration (art.3, para.1), 62nd sess, UN Doc CRC/C/GC/14 (29 May 2013), [32].
[54] At 170, [111], referring to R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532, 537 [5] (Lord Bingham).
[60] [2007] NZSC 70; [2008] 1 NZLR 429, 501-502 [177]; (McGrath J agreeing at 544 [340]).
[62] At [35]-[38] (Maxwell P, Nettle JA and Lasry AJA).
[64] Re Dale [2009] VSC 332, [16] (Byrne J).
[66] Communication No. 1020/2001, UN Doc. CCPR/C/78/D/1020/2001 (2003).
[68] Re Application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381; (2009) 24 VR 415, 425 [40] (Warren CJ).
[69] Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic), 18.
[70] United Nations Human Rights Committee, General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, 90th sess UN Doc. CCPR/C/GC/32, (23 August 2007), [42].
[71] See, for example, V v United Kingdom [1999] ECHR 171; (2000) 30 EHRR 121, 179 [86]; SC v United Kingdom [2004] ECHR 263; (2005) 40 EHRR 10, 237 [28]; Convention General Comment No. 10, [13].
[72] Convention General Comment No. 10, [13].
[78] Interim Ruling, [4]. The charges are made pursuant to ss 23 and 9(1)(c) respectively.
[85] Section 4(2)(d)(i) of the Bail Act requires the court to refuse bail if the court is satisfied that there is an unacceptable risk that the accused, if released on bail would:
Fail to surrender himself into custody in answer to his bail;
Endanger the safety or welfare of members of the public; or
Interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
[90] The informant no longer relies upon a contention that the applicant would be an unacceptable risk to fail to surrender himself to custody in answer to his bail: see Interim Ruling, [82].