Re JRP

In this case North J considered whether ss 48AF and 48AAA Youth Justice Act 1992 (the “YJA”) applied to a review of a Magistrate’s decision to grant bail to a child under s 19B Bail Act 1980 (the “BA”). It was held that whilst s 48AF applied to the Magistrate’s decision at first instance, it had no application on a review of that decision under s 19B of the BA. When regard was had to the text and context of s 48AF of the YJA, North J considered that its application is limited to circumstances where a child remains in custody. Therefore, it followed that s 48AF of the YJA only applies where a review concerns a Magistrate’s decision to refuse a child bail. Whilst the text of s 48AAA(1) of the YJA might suggest that a similar approach might be open in relation to the application of that section, North J considered that s 48AAA of the YJA does apply regardless of whether a child is on bail or remains in custody.

North J

10 March 2022

Background

The prosecutor (the “applicant”) made an application for review by the Supreme Court constituted by a single judge under s 19B Bail Act 1980 (the “BA”) concerning a magistrate’s decision to grant bail to a child (the “respondent”) in relation to offences which were said to have been committed whilst the child was on bail (the “decision”). [3]–[5], [9], [11].

Discussion

The applicant argued that s 48AF Youth Justice Act 1992 (the “YJA”) applied on the review. [15]. This section, assuming it applied on the review, would have required the respondent to “show cause” as to why their detention was not justified in circumstances where, relevantly, the respondent was charged with having committed offences whilst on bail. [13].

The text of s 48AF(1) expressly limits its own application by Parliament’s use of the phrase: “[t]his section applies in relation to a child in custody …” [16]. It follows that whilst s 48AF of the YJA would have application on a review of a decision to refuse bail, it has no application on a review of a decision to grant bail. [16]. Whilst the text could be fairly described as “curious drafting” this interpretation was reinforced by the context of the YJA, which indicates that custody is a “last resort”. [19].

It was submitted on behalf of the respondent that s 48AAA of the YJA must also have no application on a review of decision to grant bail. [17]. Emphasis was placed on text of s 48AAA(1) of the YJA which uses the phrase to “keep the child in custody”, which suggests that Parliament intended that a child must be in custody for s 48AAA of YJA to have any application on a review. [20].

Whilst s 48AAA of the YJA has its own “inherent ambiguity”, it nonetheless applies on a review regardless of whether a child is in custody or on bail. [17], [20]. This is on the basis that s 48AAA(2) of the YJA contains “relevant considerations” as to whether the “appropriate order” that may be made on a review is to “revoke” or “set aside” an order in relation to bail. [20].

Disposition

The application was allowed and the respondent’s bail was revoked. [21]–[36].

D Kerr