Bail in the time of COVID-19 –
The Courts are being far more considerate when it comes to bail so, if you have a loved one in custody, this is the time to make an Application. Most particularly, if your loved one in custody is over 50 years old, has outside family commitments, is diabetic or asthmatic and is on remand (not sentenced), please consider engaging our experienced team of criminal lawyers to prepare a bail application for them. Even if you are in an exceptional circumstances situation, the Courts are now regularly finding that the delays caused by the pandemic are exceptional and granting bail – even in cases where the evidence against the accused is strong. Most recently, in the case of Re SJ  VSC 511R, the Supreme Court released an accused on bail where the case was arguably strong but the delay exceptional.
The following are a few cases that have been decided recently, with respect to bail during the pandemic:
Re: SJ  VSC 511R
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. In 2018, the three stages of these legislative changes were rolled out. In our view, the new Bail Act is far more complicated than the previous Act, the effect being that many people remain remanded in custody in circumstances where previously they may have been bailed.
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.
Offences are divided in to Schedule 1, Schedule 2 and ‘other’ offences. Depending on the classification of an Accused’s offence and the surrounding circumstances, the Accused will have to establish, initially, either ‘exceptional circumstances’ or a ‘compelling reason’ that justifies the grant of bail. Thereafter the Court must determine whether the Prosecution has shown that the Accused is an unacceptable risk.
To better understand how the bail process operates, the Judicial College of Victoria has released a flow chart which helpfully assists in understanding the process.
Schedule 1 Offences
The following are among the Schedule 1 Offences under the Bail Act:
- Aggravated home invasion;
- Aggravated carjacking;
- Trafficking in a large commercial quantity;
- Trafficking in a commercial quantity;
- Cultivating a large commercial quantity of a narcotic plant; and
- Cultivating a commercial quantity of a narcotic plant.
The complete list can be located under the Bail Act.
Schedule 2 Offences
The following are amongst the Schedule 2 Offences under the Bail Act:
- An offence that is alleged to have been committed by the accused while on bail for an indictable offence;
- An offence that is alleged to have been committed by the accused while subject to a summons to answer to a charge for another indictable offence;
- An offence that is alleged to have been committed by the accused while at large awaiting trial for another indictable offence;
- An offence that is alleged to have been committed by the accused while the accused was service a community correction order made in relation to an indictable offence;
- An offence that is alleged to have been committed by the accused while serving a sentence for another indictable offence;
- An offence that is alleged to have been committed by the accused while under a parole order;
- Child Homicide;
- Causing serious injury intentionally in circumstances of gross violence;
- Make threats to kill that are also a family violence offence; and
The complete list can be located under the Bail Act.
Offences that are neither Schedule 1 or Schedule 2 offences are ‘other offences’ for which the unacceptable risk test applies.
Once the decision maker has determined the substantive test (exceptional circumstances or compelling reason), he or she must thereafter turn their minds to any argument by the Prosecution that the Accused poses an unacceptable risk if released on bail.
The Accused will be remanded if the decision maker determines that the Accused, if released on bail, would:
- Endanger the safety or welfare of another; or
- Commit an offence whilst on bail; or
- Interfere with a witness or otherwise obstruct justice; or
- Fail to surrender into custody.
In considering the whether the Accused poses an unacceptable risk, the decision maker will give consideration to 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.
The amended Bail Act pays particular attention to offences alleged to have occurred in circumstances of family violence. The decision maker must make enquiries of the Informant or Prosecutor in relation to the status of any Intervention Orders in place. They are also required to make enquiries in accordance with the Victorian Common Risk Assessment and Risk Management Framework Tools and Practical Guides (CRAF), which framework will inform whether the Accused may be an unacceptable risk if released on bail.
A number of risk factors have been observed throughout the research as indicating an increased risk of re-offending or an escalation in family violence. These are now included in the CRAF and 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.
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 Parker 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  VSC 750 (number 1 and 2) and DPP v SE  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  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.