The Definition of ‘Violence’ in Bail Cases arising from Charges of Breach Family Violence Intervention Order

In the case of Re Application for Bail by Swain [2017] VSC 55, the Accused was charged with a number of offences including a breach of a family violence intervention order. The issue that arose before the Supreme Court was the definition of violence pursuant to section 4(4)(ba) of the Bail Act 1977, which proscribes particular provisions applicable to persons charged with breaching such an order, whom have previously been convicted with a crime of actual or threatened violence.

Family violence has a much wider definition under the Family Violence Protection Act than it does in common usage, encompassing forms of emotional, physical, financial and mental abuse. The question before the Court was whether violence in the context of an application for bail should be interpreted according to its common understanding or whether it has the wider definition as prescribed in the family violence legislation.

Justice Dixon held (at paragraphs 9-14) that the narrower and more common understanding of the term ‘violence’ must be used and not the wider interpretation of ‘family violence’ as defined in the Family Violence Protection Act. This has significant ramifications for accused persons applying for bail because it narrows the scope of offences that may be taken into account when the Court considers the issue of whether the accused has shown cause as to why they should be granted bail in the current matter.