Child Charged with Murder Applies for Bail

Re PM [2022] VSC 421 (29 July 2022)

The applicant is a 13-year-old child charged with murder. He applied to the court for bail. The Court, in determining whether bail should be granted assessed if there are exceptional circumstances in his case. 

Facts:

PM (‘the applicant’) has applied for bail. He is 13 years of age and has been charged with murder. He is currently being detained in a youth justice centre, having been arrested and remanded on 23 March 2022. The prosecution alleges that the applicant associates with one group of youths and Declan Cutler (‘the deceased’) a different group. 

There has been friction between the two groups resulting in some violence and threats. In the context of that hostility, in the early hours of the morning on 13 March 2022, the deceased, who was then 16 years old, was set upon by a group of eight youths, including the applicant, in a residential street in Reservoir, where he was violently killed during a frenzied attack involving multiple weapons. Seven young people, aged between 13 and 17, have been arrested for murder and remanded in custody. The applicant, at 13 years old, is the youngest of them.

Police investigators have traced the movements of both the applicant and the deceased in the lead-up to the fatal attack. The deceased and his friends were at a party in Reservoir. They believed that one or more of the accused were coming to the party and they decided to leave. They armed themselves with kitchen knives before they left.

The eight assailants arrived near the house in a stolen car. They came across the deceased who had become separated from his friends and attacked him. The fatal assault is captured on CCTV footage. Although taken in the dark of early morning, the footage is clear and chilling.  

The deceased is stabbed, kicked and stomped on. The applicant can be clearly seen in the footage. He is unarmed but an active participant in the attack.

Issue:

Whether or not the applicant should be granted bail.

Applicable law:

Bail Act 1977, s 4A (‘the Act’) - provides that the applicant can only be granted bail if there are exceptional circumstances justifying the grant of bail.

RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 (‘RP’) - provides that the law presumes that the applicant lacks the capacity to form the necessary mental element for the offence.

Re JO [2022] VSC 277 - provides that the suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.

Analysis:

There are a number of factors that make the position of the applicant exceptional. They include the applicant’s youth, that he has the benefit of a legal presumption that he lacks the necessary intent to commit the offence, that he is vulnerable in detention, the risk of a deterioration in his mental health in custody, and the expected duration of remand. 

It is sufficiently plain on the current material, that the applicant lacks the maturity, insight and ability to adequately control his own behaviour. That is a function of his age and stage of development.

The professional support depends to some extent on the capacity and willingness of the applicant to engage. Given his age and immaturity, it is not possible to place weight on his assurances. 

His past history of non-compliance with bail conditions, including a curfew and absconding, is highly relevant. The applicant's mother candidly accepted that she could not control the applicant when she was asleep and that in the past she would wake to find the applicant missing. She said that the applicant would not tell her when he was leaving the house and that effectively he did what he wanted. 

Conclusion:

In the current state of the material, the risks of reoffending and interfering with witnesses are simply too great to permit a grant of bail. The proposed conditions and supports are, at this stage, inadequate to bring the risks to an acceptable level. The application for bail must be refused. 

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