BAIL APPLICATIONS 

Important Note: On 8 May 2017, the Victorian Premier announced that he was introducing Bail Reforms into Parliament in response to the Bail Review conducted following the Bourke Street Tragedy. These Reforms are yet to be introduced into legislation, but it is clear that Bail law in Victoria is going to change. Please ensure that you check the Bail Act at the time of preparing your Application as changes may be introduced which affect you. We have attempted to include notices regarding potential changes to the Bail laws in the body of this page. Alternatively, our lawyers are keeping up to date on all of these changes so please contact our office on 03 9670 8771 to make an appointment.

For those interested in the recommendations made by Justice Coghlan in the Bail Review provided to the Government, please read the original recommendations. Foley’s List also conducted a very information seminar on the Recent Changes in the Magistrates’ Court during which Magistrate Cameron and Mr. Tony Trood of Counsel discussed the foreseeable changes to the Act and the implications this may have for accused. 

 

Once a person is arrested and charged with an indictable offence, the Police may remand them in custody pending an appearance before a Bail Justice or a Magistrate. A person must be brought before a Bail Justice or Magistrate within 24 hours of being taken into custody. Whether you are entitled to bail depends on the nature of the offences for which you are charged and your own personal circumstances.

 

If you are legally represented when you appear before a Bail Justice or Magistrate (regardless of whether you have had an opportunity to properly prepare and instruct the lawyer), if bail is denied to you, you must show new facts and circumstances in order to appear again before a Magistrate. The alternative is to appear before a Judge in the Supreme Court. It is imperative that if someone you know is remanded in custody that you to do not hastily present a bail application out of desperation and in the heat of emotion. For very serious offences, where the accused is remanded in custody, a bail application must be properly prepared in order to maximise the accused’s chances of obtaining bail. How long such preparation takes depends on a number of factors.

 

If you are making enquiries of law firms with a view to engaging a lawyer to represent your loved one in custody, please refer to our Bail Information Guide on our Blog. This Guide documents all of the most important information and materials that you should gather to prepare an Application. This Information should be provided to your lawyer so that they can expeditiously and comprehensively prepare the Application.

 

Tests for the Grant of Bail – Section 4

Entitlement to Bail

An accused person is entitled to bail unless their alleged offending places them in a show cause or exceptional circumstances situation or, unless the Prosecution is alleging that the accused poses an unacceptable risk if released on bail.

 

Show Cause

If you are charged with any of the following offences, or a combination thereof, you must show cause to the court as to why you should be granted bail:

  • an offence against the Bail Act;
  • an indictable offence alleged to have occurred whilst you are awaiting trial for another indictable offence;
  • stalking and you have within the last 10 years been convicted/found guilty of an offence involving the use or threat of violence or the court is satisfied that you (on a separate occasion) used/threatened violence against the alleged victim of the stalking (regardless of whether you were charged, convicted or found guilty of the prior matter);
  • with a breach offence under the Family Violence Protection Act, where it is alleged that you used or threatened violence and you have been found guilty in the last 10 years of an offence involving the use or threat of violence or the court is satisfied that you (on a separate occasion) used/threatened violence against the alleged victim of the stalking (regardless of whether you were charged, convicted or found guilty of the prior matter);
  • with a breach offence under the Personal Safety Intervention Orders Act where it is alleged that you used or threatened violence and you have been found guilty in the last 10 years of an offence involving the use or threat of violence or the court is satisfied that you (on a separate occasion) used/threatened violence against the alleged victim of the stalking (regardless of whether you were charged, convicted or found guilty of the prior matter);
  • aggravated burglary (or any other indictable offence) which involved the use or threatened use of firearm, offensive weapon or explosive;
  • aggravated car jacking;
  • aggravated home invasion;
  • arson causing death;
  • trafficking a drug of dependence to a child or conspiracy to do the same;
  • trafficking in a drug of dependence or conspiracy to do the same;
  • cultivation of narcotic plants or conspiracy to do the same; and
  • certain Commonwealth offences under the Customs Act and the Criminal Code.

(Please note that the above list is not exhaustive. Please obtain legal advice if someone you know is charged with an offence and is remanded in custody).

 

Exceptional Circumstances 

If you are charged with any of the following of the offences, or a combination thereof, you must show exceptional circumstances to the court as to why you should be granted bail:

(Please note that the above list is not exhaustive. Please obtain legal advice if someone you know is charged with an offence and is remanded in custody).

Note: On 8 May 2017, it was announced that the Victorian Government would seek to have the Bail Act amended so that the following offences are also subject to the exceptional circumstances test:

  • rape;
  • kidnapping;
  • armed robbery;
  • intentionally or recklessly causing serious injury with gross violence;
  • culpable driving;
  • dangerous driving causing death or serious injury;
  • dangerous or negligent driving while pursued by the Police; and
  • Persistent contravention of a family violence intervention order.

If the amendments are passed in Parliament, the exceptional circumstances test will also apply to people alleged to have committed serious indictable offences whilst on bail, summons, parole, under sentence or at large. Bail Justices will not be able to make decisions regarding bail applications in these circumstances and the matter must be decided by a Judge or Magistrate.

 

Unacceptable Risk 

A court will refuse bail if it is satisfied that there is an unacceptable risk that, if released on bail, the accused would:

  • fail to answer his or her bail (ie fail to attend court when required);
  • commit an offence whilst on bail;
  • endanger the safety or welfare or members of the public; and/or
  • interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or another person.

However, as part of the court’s assessment as to whether the accused poses an unacceptable risk, the judicial officer must also consider the following:

  • the nature and seriousness of the offence(s) alleged;
  • the strength of the evidence against the accused;
  • the character, associations, background and home environment of the accused;
  • whether the accused has any prior convictions;
  • the history of any previous grants of bail (ie has he or she complied or breached a bail undertaking before); and
  • the attitude of the alleged victim (if any) to a proposed grant of bail;
  • whether any conditions may be applied to a grant of bail which would ameliorate the courts concerns regarding the risk.

Unacceptable Risk & Family Violence Offences

In 2015, the Magistracy across Victoria engaged in a two-day Family Violence Conference aimed at improving the way in which the Courts respond to family violence. Part of the conference, was a discussion of the way in which risk should be assessed, given the research into risk in family violence situations. This is particularly relevant to bail applications as ‘unacceptable risk’ is an important consideration in assessing whether an Accused person should be released on bail.

Whilst not legislated under the Bail Act, Magistrates are encouraged to have consideration to the Family Violence Common Risk Assessment Framework (the ‘CRAF’) when assessing an Accused’s person’s risk when released on bail. A number of risk factors have been observed throughout the research as indicating an increased risk of re-0ffending or an escalation in family violence, which factors are summarised as follows:

  • Pregnancy/new birth can initiate or intensify family violence;
  • Drug & alcohol abuse;
  • Strangulation or attempted strangulation of a victim is a key indicator that the violence is increasing and may become fatal;
  • Use of a weapon in a recent incident;
  • Harm or threatened harm to the victim, children, family member or pets – particularly where this harm is new (ie the abuse was previously directed at the partner, but has recently been perpetrated on the children);
  • If the Accused has threatened suicide, as this can evidence an escalation in their distress and therefore a risk factor for murder/suicide;
  • If the Accused is unemployed;
  • Stalking or past breaches of intervention orders;
  • Recent separation, which is shown to increase the risk of violence, especially when the separation is very recent (within two months); and
  • Financial hardship.

Defence practitioners will now be expected to address these risk factors with their clients, if their client is charged with offences arising from allegations of family violence and is applying for Bail. More than ever before, Bail conditions may be tailored to address these factors and to ameliorate an increase in risk to the alleged victim and Accused. When the findings of the Royal Commission into Family Violence are handed down and recommendations considered, the community can expect significant legislative changes which will inevitable include changes to the Bail Act. In the interim, experienced criminal lawyers will be expected to incorporate the CRAF into their Bail Applications, where applicable.

Conditions of Bail 

A Judge or Magistrate can impose a range of conditions on an undertaking of bail which may include:

  • reporting to a police station;
  • lodging a surety to the court ;
  • residing at a particular address;
  • a curfew;
  • not to contact specific persons or a class of persons (e.g. children);
  • to surrender his or her passport; and
  • not leave the state of Victoria.

A Judge or Magistrate may also create a condition which they consider appropriate to impose upon the accused, such as a restriction upon using the internet, where the accused is alleged to have committed cyber-crime offences.

Galbally Rolfe Criminal Lawyers regularly appear in bail matters which involve applications, alleged breaches, variations and also in relation to the discharge of sureties. Often negotiating with Police and Prosecutors is as invaluable a part of the bail process as the preparation and appearance upon the application.

Bail for Youth Offenders

In recent months, we have seen an increase in the number of serious and violent offences allegedly committed by minor persons. The reporting within the media and the community concern regarding youth crime has also increased. Following the ‘riots’ at youth detention centres, the Government started introducing youth offenders into the Grevillea Unit at Barwon Correctional Centre. This has caused significant concern amongst the legal profession, including our office, given the particular needs of youth offenders (children) and the particular rights that apply to them.

These rights have been addressed before the Supreme Court of Victoria in the following cases: Application for Bail by HL [2010] VSC 750 (number 1 and 2) and DPP v SE [2017] VSC 13. The treatment of children before the Courts when taken into custody is dealt with in the Children, Youth and Families Act 2005, Charter of Human Rights and Responsibilities Act 2006. Section 23 dictates that detained children must be segregated from all detained adults, treated in a manner appropriate for their aged and processed through the criminal justice system as quickly as possible.

In the case of DPP v SL [2016] VSC 714, Justice Bell held in relation to the child accused before the Court that particular measures should be adopted when dealing with the child in that case, which measures we expect to be replicated throughout the criminal justice system, most particularly that:

  • They should not be handcuffed;
  • They should not be detained with adult prisoners;
  • They should be given the opportunity to become familiar with the court precinct;
  • That neither Counsel nor Judges will robe and Counsel will remain seated when speaking;
  • The child may sit with Counsel or family/friends;
  • That the language used should be understandable to the child; and
  • That proceedings should be conducted insofar as possible, so that the child accused may participate.

Whether a child accused is granted bail will depend on a number of factors and, most specifically, the charges they are facing, any prior criminal history and any history of grants of bail. Unfortunately, with community pressure increasing to incarcerate recidivist child offenders and a review of bail laws underway, we may see that children who would ordinarily receive bail may be remanded. It is imperative therefore that early intervention in the proceedings occurs, that the child is adequately represented and that the Applications well prepared.

Please contact our experienced criminal lawyers if someone you know is remanded in custody and wishes to make an application for bail.