LT v Director of Public Prosecutions (NSW)

Legislation Cited: Bail Act 2013 (NSW), ss 19, 28, 28(4), 28(5)

Cases Cited: N/A

Texts Cited: New South Wales, Law Reform Commission, Report 133 on Bail, (April 2012)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 1 May 2013

Category: Principal judgment

Parties: LT (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation: Solicitors:
Legal Aid Commission (NSW) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2025/00307673

Publication restriction: There is a statutory prohibition pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) on the publication of material likely to identify the applicant.

EX TEMPORE JUDGMENT

1. Last Tuesday, 2 September 2025, I heard a release application by LT who is a 16-year-old – (a child under the law) – who is to stand trial, along with three other young people, for the murder of Kristie McBride in November or December 2023 at Warrawong, a suburb of Wollongong. It is unnecessary to revisit the details of that application now, other than to say that I granted the release application over the opposition of the Director of Public Prosecutions who was ably represented by Mr Sit.

2. A difficulty that arose last Tuesday was that the Youth Justice report prepared for the purpose of the release application indicated that appropriate accommodation had not been organised by the Department of Communities and Justice. The report noted, however, that an officer of the Department said that:

“[I]f bail is granted, DCJ is obligated to provide an emergency placement under an Individualised Placement Arrangement (IPA).”

3. The report went on to say:

“[REDACTED] from Life Without Barriers advised that DCJ have assured emergency accommodation can be arranged within 24 hours if [LT] is granted bail.”

4. That assertion or promise or undertaking was repeated in a section of the report entitled “Proposed Bail Support” which said:

“[The] Department of Communities and Justice (DCJ) will source emergency accommodation for [LT] within 24 hours, if granted bail.”

5. The report also referred to LT’s “complex mental health and substance use concerns” and set out the kind of support that would be available if she were to be released. One avenue of support arises from the fact that she was subject to a parole order before being taken into custody on the last occasion, that is on 24 October 2024. The parole period was suspended during her period in youth detention. There will be some supervision presumably available under that parole order.

6. One of the reasons for the Director’s opposition to bail arose from the fact that it was difficult to assess the bail concerns and whether there were any unacceptable risks under s 19 of the Bail Act 2013 (NSW) when the nature and location of the accommodation was not known. This was a valid position for the Director to take, but it seemed there was something of a chicken and egg paradox playing out before the Court.

7. It is appropriate to record some of the contents of an earlier Youth Justice report dated 6 September 2024. That earlier report noted that LT was placed in the care of the Minister in 2019 when she was just 9 years old because of several reports that she was “at risk of significant harm”. Before that placement, LT lived with her mother and stepfather and, according to the report, “was exposed to physical abuse, excessive discipline and sustained non-accidental injuries whilst in their care”.

8. Because her proposed bail address was not known and based on the content of the Youth Justice report, which appeared at least to guarantee that a placement and suitable support and accommodation would be organised within 24 hours of bail being granted, if it was granted, I imposed the following accommodation requirement:

“The applicant is to live where directed by the Department of Communities and Justice (DCJ) or Life Without Barriers and nowhere else. The accommodation requirement is a pre-release condition.”

9. That accommodation requirement was based on s 28 of the Bail Act which provides, relevantly:

(1) A bail condition imposed by a court or authorised justice on the grant of bail can require that suitable arrangements be made for the accommodation of the accused person before he or she is released on bail.

(2) A requirement of a kind referred to in this section is an “accommodation requirement”.

(3) An accommodation requirement can be imposed only--

(a) if the accused person is a child, or

…

(4) The court responsible for hearing bail proceedings must ensure that, if an accommodation requirement is imposed in respect of a child, the matter is re-listed for further hearing at least every 2 days until the accommodation requirement is complied with.

(5) The court may direct any officer of a Division of the Government Service to provide information about the action being taken to secure suitable arrangements for accommodation of an accused person.

(6) The regulations may make further provision for accommodation requirements.

Note: The court can also impose the following types of bail condition (conduct requirements)--

(a) requiring the accused person to reside at the relevant accommodation while at liberty on bail,

(b) if the accommodation requirement is for the purpose of enabling the accused person to be admitted to a residential rehabilitation facility, requiring the accused person to be accompanied by a person specified by the court to that facility on release on bail.

10. I also made a direction under ss 28(4) and 28(5) that the matter be listed again before me on Thursday 4 September 2025 to ensure the promised accommodation had been arranged and, if not, for an officer of the Department to attend to explain why accommodation had not been arranged.

11. In addition to the accommodation requirement, I also imposed a home detention condition which essentially reflected the condition proposed on the applicant’s behalf. That condition was as follows:

“The applicant is to comply with a home detention condition not to leave the premises at which the applicant is required to live unless in one of the following circumstances:

(a) to obtain emergency medical treatment; AND/OR

(b) when in the company of a DCJ Case Worker OR Life Without Barriers support worker OR a person approved in writing by DCJ.”

12. When the matter came before the Court on 4 September 2025, [REDACTED] attended via AVL and explained, or attempted to explain, the difficulties the Department was having in finding appropriate accommodation. It is not necessary to go into the details of those difficulties. I was satisfied that genuine attempts were being made and that those charged with the important task of finding accommodation and appropriate support were acting in good faith. Nevertheless, the reality was that no accommodation had been arranged for the child despite assurances this would happen through Life Without Barriers within 24 hours of this Court allowing the release application and granting conditional bail. [REDACTED] answered all of the Court’s questions and I accepted that she was in contact with people at a very high level within the Department and that efforts to find suitable accommodation would continue.

13. A question then arose as to what further directions should be made and when the matter would next come back before the Court. In this regard, Mr Sit raised an interesting question as to whether s 28(4) required the matter to come back in a minimum of two days or whether “it could be longer in circumstances … perhaps … the middle of next week”. The section seems reasonably clear, as does the purpose of the legislation, which is to ensure that accommodation is organised and effect given to the orders of the Court. Those orders are not to be thwarted by administrative resistance or inactivity. I do not suggest that is what has occurred here.

14. Against the possibility that there was any doubt about the timing provided by s 28(4), I reviewed the secondary materials. The Second Reading Speech recorded in Legislative Assembly, Parliamentary Debates (Hansard) on 1 May 2013 simply echoes the statutory language (with my emphasis):

“… Proposed section 28 permits courts and authorised justices to impose an accommodation requirement being a bail condition requiring that suitable accommodation be arranged before a person is released to bail. The Law Reform Commission recommended that the new Act should provide for a condition of this nature in relation to children, and proposed section 28 implements this recommendation. The Children's Court has faced a recurring difficulty when dealing with children whom it wishes to release to bail but who do not have suitable accommodation available. Under the existing Act, the court's only option in those circumstances is to refuse bail to the young person and then reconsider it when accommodation is organised.

However, proposed section 28 allows the court to impose bail, including the accommodation requirement, and, once suitable accommodation has been found, the accused can be released to bail without the matter having to be relisted before the court. The bill incorporates safeguards recommended by the Law Reform Commission including a requirement that the court relist the matter at least every two days for further hearing until the condition is met, to ensure that the person is not detained for an unduly lengthy period beyond the grant of bail.”

15. The New South Wales Law Reform Commission Report 133 on Bail from April 2012, upon which the Bail Act 2013 (NSW) was largely based recorded the following (with my emphasis):

“13.5 A new Bail Act should provide that, in cases where a young person would be released except for the fact that there is no accommodation or no suitable accommodation available, the Act should provide that:

(a) the Children’s Court may impose a condition that the young person is not to be released until the court is informed by the Department of Family and Community Services or Juvenile Justice NSW that suitable accommodation is available,

…

(e) upon imposing a condition pursuant to this provision, the Court must re-list the matter for further hearing every 2 days until the Court is notified in writing that suitable accommodation has become available and its address,

(f) at any stage in this process, the court may direct any relevant department to provide up to date information concerning action being taken to provide suitable accommodation.”

16. I am satisfied that, subject to the exigencies such as the weekend and the need for flexibility to ensure the Department’s officers are not too busy coming to and from Court that they cannot focus on finding a suitable solution to any accommodation problem for a child in LT’s position, the Court must continue to list the matter every two days at a minimum.

17. In any event, the matter was stood over until today, 9 September 2025, which in fact exceeded that statutory period, but took account of the weekend and [REDACTED]’s observations as to what needed to be done to ensure that accommodation, supervision and support was in place before any bail conditions were settled. What needed to be organised was a suitable and safe facility.

18. My Associate received an email this morning attaching a letter from the Director of Community Services of the Southern New South Wales District:

“Dear Justice P Hamill,

Re: Bail of [REDACTED]

I seek to provide an update regarding the bail arrangements for [LT].

I confirm that [LT] is a young person under the Parental Responsibility of the Minister (by Orders of the Children’s Court of NSW) and case management for [LT] is currently provided by Life Without Barriers.

Actions Taken to Secure a Placement

Following bail being granted for [LT] on 2 September 2025, the Department of Communities and Justice (DCJ) immediately sought Principal Officer approval for [LT] to enter into an Individual Placement Arrangement (IPA) with Life Without Barriers.

An IPA involves the young person residing in stable, home like accommodation and being cared for by a rotating roster of staff 24 hours/ 7 days a week. It is based upon the individual needs of the young person, aiming to provide a highly structured, tailored and supervised environment that caters to the young person. The agency providing the IPA must be accredited by the Office of the Children’s Guardian to provide residential care.

Principal Officer approval for an IPA for [LT] was granted by myself (in my role as Director Community Services – Southern District) on 3 September 2025.

On this same date, Life Without Barriers then advised that they could not provide staff for an IPA for [LT], noting concerns that the ‘house detention is exceedingly rigid’.

On 4 September 2025, as attempts to obtain a placement for [LT] continued, further concerns were identified and raised internally by DCJ staff in relation to [LT’s] bail. These concerns included:

• All but one of the available providers that have residential care accreditation and are available to be engaged to provide a High-Cost Emergency Arrangement (HCEA) had declined to provide an IPA placement for [LT], after noting her bail conditions and considering the risk to their staff and agency.

• The one HCEA provider willing to offer an IPA for [LT] is a small agency with emerging experience and by supporting that placement, DCJ may be exposing them to exceptionally high risk.

On this same date, a meeting was then held with the HCEA provider to further explore this IPA option for [LT]. In attendance were staff from DCJ, Life Without Barriers and the potential placement agency. The outcomes of this meeting were as follows:

• The potential placement agency advised that they were confident of being able to offer [LT] a placement.

• A property had been sourced for [LT’s] placement from Pontem Housing – the address being [REDACTED]. This property had not yet been booked but was confirmed as available.

• Life Without Barriers indicated that in order for them to support [LT] entering an IPA, they would request that the bail conditions regarding home detention and encrypted devices be varied (more leniency given in these areas).

On this same date, following the above-mentioned meeting, Life Without Barriers then confirmed to DCJ that they are unable to support [LT] under her current bail conditions.

Since this discussion and to present date, DCJ have continued to advocate for [LT’s] proposed placement option with Life Without Barriers, and as of 9 September we envisage [LT] should be able to be released to the proposed placement as early as this afternoon. Whilst Life Without Barriers remains concerned about managing this placement and has not yet confirmed whether they will seek to transfer case management back to DCJ, the placement is able to proceed.

Concerns Held By DCJ

DCJ acknowledges the decision made to grant bail for [LT] and whilst arrangements continue to be made to progress the proposed placement for her, concerns remain that facilitating a placement in line with her current bail conditions proves difficult. Should [LT] choose not to comply with her bail conditions she could place not only herself, but staff supervising her placement and potentially other members of the community at risk. DCJ remains concerned about this risk, however, we continue to attempt to progress the placement for [LT], acknowledging the Court’s comments that [LT] herself is responsible for her compliance and not those providing supervision to her.

Planned Direction for [LT]

DCJ continues to hold discussions with Life Without Barriers, as well as the potential HCEA provider for [LT] and the additional agencies supporting her as we work towards progressing the proposed placement ready for her release.

DCJ will continue these attempts to progress the placement for [LT]. This may continue to prove difficult given that Life Without Barriers, the agency currently providing case management for [LT], appear unwilling to support an IPA which includes the current bail conditions.

To proceed with an IPA for [LT] whilst her bail conditions stand unchanged, may then require a change of case management for her. A change of case management would break the relationships [LT] has built with her Life Without Barriers casework staff. Whilst this may become a necessary step for [LT] if agreement with Life Without Barriers can’t be reached, it is something that DCJ are aiming to avoid if possible, given the detrimental effect it may have on [LT].

DCJ respectfully seek that the Court give consideration to clarifying the wording within [LT’s] bail conditions, given the difficulties that the wording of her current bail conditions poses in progressing the proposed placement for her. This clarification will assist DCJ as we work with Life Without Barriers to progress the proposed placement for [LT], whilst also hopefully avoiding a change in case management for her. We understand that an application of this nature will be made by [LT’s] Legal Aid representative, and we would support such an application which would assist as we continue to attempt to secure an appropriate placement for [LT].

Please do not hesitate to contact [REDACTED] from DCJ Legal on [REDACTED] if you have any queries in relation to this matter.

Yours Faithfully,

[REDACTED].”

19. My Associate replied to that email as follows:

“Dear [REDACTED],

Justice Hamill asked me to thank you for your email and the attached letter.

The bail variation proposed by LT’s Legal Aid solicitor reads as follows:

(a) The applicant must, at all times when away from the address at which she is required to live, be in the company of,

(i) a case worker from the service which is managing the residence where the applicant is required to live, or

(ii) a case worker from Youth Justice, or

(iii) a case worker from the Department of Communities and Justice, or

(iv) an adult approved in writing by the Department of Communities and Justice,

unless obtaining emergency medical treatment.

His Honour asked whether you could please confirm that this variation, if made, is sufficient to ensure that accommodation will be made available to LT and she will be released to bail.

Alternatively, are there any other conditions that need to be varied to ensure LT is released expeditiously and in accordance with the Court’s decision on the release application – for example, you have raised an issue around the technology conditions.

His Honour also asked me to pass on his commendation of the efforts of [REDACTED] and gratitude to others in the Department, and to indicate he proposes to continue to act in accordance with sub-s 28(4) and 28(5) of the Bail Act 2013 (NSW) until the matter is resolved.

Kind regards,

[REDACTED].”

20. We then received an email at 1:21pm from [REDACTED], a solicitor from the Child Law, Law Reform and Legal Services of the Department of Communities and Justice. That email indicated that the variations proposed by Mr Wade, that is LT’s solicitor from the Legal Aid Commission, were sufficient and no further variations were required concerning technology or otherwise. The email continued:

“Life Without Barriers have confirmed that all arrangements are in place for LT’s release this afternoon, the house is prepared and staff will be awaiting her arrival. I also understand transport arrangements have been confirmed.

Should you require anything further, please let me know.

Thanks,

[REDACTED].”

21. We then attended Court at 2:00pm when the matter was listed and received some brief further submissions.

22. Based on the information currently to hand, I propose, in deference to the concerns raised by the Department, to vary the bail to provide “more leniency” in the area of home detention. I am now told that the reference to leniency required in terms of the encrypted devices in the letter is not necessary and I accept Mr Sit’s position on that condition, which is why I imposed it in the first place. There will be no variation to that condition.

23. Based on the information I have received to this point, on making the following orders, LT’s release should be imminent. At this moment, someone is available to take her to the new accommodation and then for her to be welcomed there by the people who are expecting her. Accordingly, I make the following orders:

24. Vary the home detention condition to delete the condition imposed on 2 September 2025 and insert in its place the following condition:

(a) The applicant must at all times when away from the address at which she is required to live be in the company of:

(i) a caseworker from the service which is managing the residence where the applicant is required to live; or (ii) a caseworker from Youth Justice; or (iii) a caseworker from the Department of Communities and Justice; or (iv) an adult approved in writing by the Department of Communities and Justice (v) unless she is obtaining emergency medical treatment.

2. Otherwise, confirm the orders made on 2 September 2025, including the remaining conditions.

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