LT v Director of Public Prosecutions (NSW)

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.

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:

The report went on to say:

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

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.

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.

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”.

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:

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

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.

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:

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.

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.

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):

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):

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.

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.

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

My Associate replied to that email as follows:

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:

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

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.

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: