Bail Notes T1 2019 PDF

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BAIL INTRO • For some offences, police will arrest the suspected offender and take them into custody. • Bail is the process whereby a person who has been arrested is released from custody back into the community upon their agreement (undertaking) to return to court to respond to the charges against them. • Bail conditions can be imposed, such as not approaching the alleged victim or being subject to a curfew.  Remand An alleged offender is remanded in custody by a court if they: • have been refused / not applied bail • cannot afford to pay the amount of money set to be forfeited for failure to appear when required, or nominate another person to pay this money on their behalf • are unable or unwilling to meet the conditions set out in the bail bond. Persons held on remand are required to be kept separate from sentenced prisoners o Males are generally held on remand at either the Metropolitan Remand Centre or the Melbourne Assessment Prison. o Females are held at the Dame Phyllis Centre. There is concern in Australia about the growing number of persons held on remand and the proportion of the prison population held on remand. In Victoria, from 2005-10, about 18% of prisoners were on remand (the remaining 82% were serving prison sentences). Negative implications of remand: 1. Possibility that any sentence ultimately imposed will be < period on remand or that accused will be found not guilty 2. Accused held on bail sometimes held in same prisons as convicted offenders 3. More difficult to communicate with lawyer than if in community 4. Loss of employment, income, business 5. Inability to care for family CASE STUDY: Tony Mitchell Jan, 2015: Mitchell met his victim at a café . Police allege the victim took his 3-month-old daughter as protection because he was telling Mitchell that he would not be loaning him $300,000. The court heard Mitchell allegedly responded by punching the victim, jabbing him with a gun and threatening to kill both him and his daughter. Mitchell was arrested (assault, threatening to kill); denied bail. The court heard there were up to 30 witnesses, but that many were "petrified" about giving evidence. Mitchell was refused bail in Mag Court and to appear in court again in May. March 2015: Again refused bail by a Supreme Court judge due to concerns he will interfere with witnesses.

Justice Betty King said there were no bail conditions that could stop him from interfering with witnesses or committing a related crime. After the decision, Mitchell's mother said "What happened to innocent until proven guilty in this country? Where's that gone?”

 The Tension Ensuring the accused will attend court, will not offend, threaten safety/welfare of public or interfere with witnesses. V Ensuring an accused, who has not yet been found guilty and is therefore entitled to the presumption of innocence, is not deprived of liberty unnecessarily  Bail Act 1977 (Vic) Section 1B - Guiding principles 1. The Parliament recognises the importance of— a. maximising the safety of the community and persons affected by crime to the greatest extent possible; and b. taking account of the presumption of innocence and the right to liberty; and c. promoting fairness, transparency and consistency in bail decision making; and d. promoting public understanding of bail practices and procedures. 2. It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).  Charter of Human Rights and Responsibilities Act 2006 (Vic) Section 22 • An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary. • An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.

BAIL – THE PROCESS Who can grant bail? • Police • Bail Justice

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Magistrate Judge (County, Supreme, High Court)

 BAIL JUSTICES • About 500; established under Magistrates’ Court Act. • Deal with out of hours applications. • Bail justice may refuse or grant bail to a person in police custody. • Tend to refuse bail: VLRC data indicated that bail justices refuse bail in 80% cases (VLRC, 2005). WHEN can a person APPLY for bail? Most commonly, bail is applied for: o After arrest and upon being charged at the police station; o When the accused is brought before a Bail Justice or a Magistrates' Court; o During their trial; o After conviction and sentencing, pending an appeal; and o Following a successful appeal against conviction and prior to any re-trial being heard. Bail Hearing - s. 8 Bail Act 1977 (Vic) • Generally, standard of proof is on the balance of probabilities • Police informant must be present • Court can consider any credible or trustworthy evidence • Prosecution presents case first, may show circumstances of offence (probability of conviction of accused) • Police may disclose prior convictions & other pending charges of accused: (s. 8(1)(c), & prior failure to answer bail • Accused cannot be examined or cross-examined as to offence and admissions and confessions are generally inadmissible if D subsequently pleads not guilty

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PRESUMPTION  PRESUMPTION OF BAIL The starting point is that accused persons should be granted bail: Any person accused of an offence and being held in custody in relation to that offence shall be granted bail… s. 4(1) 1. Compelling risk (+ Unacceptable risk) 2. Exceptional circumstances (+ Unacceptable risk)

CATERGORIES OF BAIL APPLICANTS

1. Exceptional Circumstances Section 4a – Bail Act (Vic) Flow Chart 1 – Schedule 1 Offences

Exceptional Circumstances Test BAIL ACT 1977 - SECT 4A (1A) The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.  Note – can still be refused if D an unacceptable risk under s. 4E. 2. COMPELLING REASON TEST Section 4C – Bail Act (Vic) Flow Chart 2 – Schedule 2 Offences

Show Compelling Reason Test BAIL ACT 1977 - SECT 4c (1A) The bail decision maker must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.  Note – can still be refused if D an unacceptable risk under s. 4E. Compelling reason 2-stage process: DPP v Harika [2001]  1. Applicant must ‘show cause’ why s/he must not be detained in custody  2. Prosecution must establish why D is an ‘unacceptable risk’

3. UNACCEPTABLE RISK Section 4D & 4E – Bail Act (Vic) Flow Chart 3 – Unacceptable Risk Test

BAIL ACT 1977 - SECT 4E All offences—unacceptable risk test (1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that— a. there is a risk that the accused would, if released on bail— (i) endanger the safety or welfare of any person; or (ii) commit an offence while on bail; or (iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or (iv) fail to surrender into custody in accordance with the conditions of bail; and b. the risk is an unacceptable risk. (2) The prosecution bears the burden … (3) In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must— a. take into account the surrounding circumstances; and b. consider whether there are any conditions that will mitigate the risk.

BAIL FORM  Bail Undertaking  Own undertaking without conditions: When a person is bailed without having to provide a deposit or a surety the person is bailed on his or her own undertaking.  Own undertaking with conditions: A court may impose conditions that it considers appropriate to the defendant and the charge. Conditions often often include the surrendering of a passport, reporting to a police station, or the requirement not to contact or interfere with witnesses.

BAIL CONDITIONS – s. 5AAA Common conditions - not contacting the victim or other witnesses: s 5AAA(4) - attend for drug / alcohol treatment: s 5AAA(4) - live at a specified address: s 5AAA(4) - regularly report to police station: s 5AAA - surrender passport: s 5AAA - curfew: s 5AAA •

If accused does not follow the conditions, police may apply to the court to revoke bail and return the accused to custody.

 Reason for imposing bail conditions Tightened up in 2010 & 2016, requires a nexus between bail condition and risks: CASE STUDY: MacBain v DPP [2002] VSC 321. All bail conditions must be: • Imposed for the purposes specified in section 5AAA(1) (to reduce the likelihood that an accused may: Fail to attend court as required; Commit an offence while on bail; Endanger the safety or welfare of the public; Interfere with witnesses or otherwise obstruct the course of justice) • No more onerous than is required to achieve the purposes of section 5AAA(2) • Reasonable, having regard to the nature of the alleged offence and the circumstances of the accused  Bail Deposit or Surety  Deposit - s5(5): The person charged lodges money or property with the court. Very similar to a surety, except that here the security is provided by the accused rather than by a 3rd party. If the person charged does not appear they may forfeit the amount lodged.  Surety – S9: A person who gives an undertaking to provide security to the Court to ensure that the accused will appear at Court. A person who acts as surety may lose the money they put up if the person on bail doesn’t attend court at the required time, date and place.  Amount of security is fixed by the Court; the person who provides the undertaking must satisfy the Court that they can provide the fixed amount (usually done by providing money or lodging title documents to prove they have assets to the value of

the security). If the person charged does not appear at Court, the surety may lose their money/ have their assets sold to pay the security to the Court. Hierarchy of Bail – s. 5 Bail Act 1. Release on own undertaking, w/o conditions 2. Release on own undertaking, w conditions 3. Release of accused with deposit or surety, with or without conditions BREACHES  Failure to Answer Bail – s. 30 Breach of bail by failure to appear at court on nominated day ‘without reasonable cause’ is a criminal offence: max penalty now 2 years imprisonment.  Arrest can be without warrant by police or PSO: s. 24(1).  Contravene Certain Conditions – s. 30A …an accused on bail in respect of whom any conduct condition is imposed must not, without reasonable excuse, contravene any conduct condition imposed on him or her.  Penalty: 30 penalty units or 3 months imprisonment.  Police can issue infringement notice (s. 32A).  Commit Indictable Offence While on Bail – s. 30B An accused on bail must not commit an indictable offence whilst on bail.  Penalty: 30 penalty units or 3 months imprisonment.  Breach of Bail & Surety – s. 6 Crown Proceedings Act 1958 (Vic) (1) Where a court is satisfied that a person has failed to observe a condition of bail the court shall declare the bail to be forfeited and shall order that the amount undertaken by the surety or sureties to be paid to Her Majesty. )

Where bail is declared to be forfeited under subsection (1) any surety may …apply to the Court that made the order to vary or rescind the order on the ground that it would be unjust to require him to pay the amount undertaken to be paid having regard to all the circumstances of the case and the court may vary or rescind the order and cancel any warrant issued in the case under the provisions of this section before the warrant so issued is executed.

 Current maximum penalty: 2 years imprisonment for failure by a surety to pay the guaranteed amount upon forfeiture

CASE STUDY: Renate Mokbel v DPP [2006] VSC 487 Renate Mokbel put up$1million surety for her brother in law Tony. She swore an Affidavit of Justification by Surety to Undertaking. When he failed to attend court for the final days of trial & fled the country, the Crown obtained an order against Renate Mokbel (as the surety) for the $1 million; in default, she must sell the property she had nominated.

She challenged the application, arguing it was ‘unjust’ ‘in all the circumstances of the case’ to force her to pay: s. 6(4) Crown Proceedings Act 1958. Burden of proof on applicant to persuade ct enforcement ‘unjust’. 

Role of surety? Essential part of bail system. Ct will ask: - Has surety fulfilled obligation to take all reasonable steps to ensure attendance of accused at trial? - Has surety taken positive action? (not enough for surety to rely on belief that accused will attend) - What has surety done to assist police after accused absconded? - Is it possible that surety is being recompensed by accused or other on his behalf?

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Held: order confirmed.

FURTHER APPLICATION FOR BAIL  Further Applications – s18 (1) - Accused can make further applications for bail whilst in custody. (2) - Applications should be made to o If charged with treason or murder, the Supreme Court o In other cases, the court person remanded to appear. (3) – Should be heard by same judge or magistrate if reasonably practicable.  When Further App Can be Made - s. 18AA(1) A court must not hear a further application for bail unless: • The applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail; or • The applicant was not represented by a legal practitioner when bail was refused or revoked; or • The order refusing or revoking bail was made by a bail justice. • NOTE - that these restrictions do not limit applications to the Supreme Court for bail: s. 18AA(2).  Hearing of Further Application - s. 18AB A further application for bail must be conducted as a fresh hearing and determined in accordance with section 4 of the Bail Act.

APPLICATION TO VARY BAIL CONDITIONS 1. Accused: s18AC (1) 2. Prosecution: s18AC (2)  Application for Variation – s. 18AC • Applications for variation of bail conditions made under section 18AC(1) or (2) must be made to the court to which the accused is required to surrender under his or her conditions of bail or :s 18AC(3).

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Exceptions: o When an accused is charged with treason or murder, applications are to be made to the Supreme Court: s. 18AC(3) o When an accused is granted bail by a bail justice or magistrate & within 24 hours the accused cannot meet the conditions of bail, , the matter goes back to the bail justice or the Magistrates Court: 18AC(4)

 Variation of Bail Conditions – s. 18AD A bail justice or court may vary bail conditions if, taking into account the surrounding circumstances, it appears reasonable – o the nature and seriousness of the offence o the accused’s character, antecedents, associations, home environment and background o the accused’s bail history o the strength of the evidence against the accused o the alleged victim’s attitude to the proposed variation, if known. •

If variation sought does not appear reasonable, it must be dismissed.

 DPP Appeal Against Insufficiency of Bail– s. 18A DPP may appeal to Supreme Court if satisfied that – • The conditions are insufficient; or • The decision contravenes the Act; and • The DPP is satisfied that it is in the public interest to do so. (6) – if the Supreme Court thinks a different order should have been made, then it must set aside the original and conduct a fresh hearing. (12) – right of appeal to the Court of Appeal.  DPP Appeal Against Refusal to Revoke Bail – s. 18AG The DPP can appeal to the Supreme Court against a refusal to revoke bail if the DPP is satisfied that it is in the public interest to do so.

THE PARITY PRINCIPLE Definition: ‘like should be treated alike’. • •

In DPP v Abbott Gillard J assumed that the parity factor in bail was similar to the principle applied in sentencing. "The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences due allowance should be made for them. In the case of cooffenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated.” - Postiglione v. The Queen [1997] HCA 26

BUT… ‘it would indeed be rare for the [parity]principle to have any relevant weight in bail applications because the circumstances invariably at all levels of determination are peculiar to the particular applicant: DPP v Zade per Gillard J  Principle of parity applies ‘if other things are equal’. But often differences exist re: - age - background - previous criminal history - general character of the offender - the part which he or she played in the commission of the offence

COMMONWEALTH There is no comprehensive Commonwealth legislation dealing with bail. Instead, ss 68(1), 79 and 80A of the Judiciary Act 1903 (Cth) make the relevant Victorian bail provisions applicable to persons arrested for Commonwealth offences....