criminal procedure :bail

Lecture Outline1. Introduction2. Bail Decision Makers3. Process for Bail4. Bail Tests5. Bail Conditions6. Breach & Forfeiture7. Further Bail Applications and Appeals8. Moot Scenario

1. IntroductionBail = Restricted liberty pending final determination of a criminal case (from arrest to appeal)

Bail = balance individual civil liberties vs public interest in ensuring that A appears in court to face charges and protection of public, pending finalisation of judicial process

Presumption PRO Bail (ie liberty)Bail Act S 4 (1) “shall be granted bail..”

Rationale for Bail- Often delay in trial - difficult for A to prepare case in jail- Custody is punishment ( for A + family)- Loss of income/employment- Social stigma- Cost to state

SEE also CHRR s 21 (7) & s 22

2. Bail Decision Makers- WHO?- Police - Bail Justice- Sherriff in Infringement jurisdiction - Magistrates & Children’s Court mag- County and Supreme Court Justice- Supreme court – inherent jurisdiction (de novo)

and appeal by DPP a/st bail decision- Crt of Criminal Appeal if A is appealing or

seeking leave to appeal a/st sentence- HC under C/W Constitution pending special leave

applications

3. Process for Bail Police proceed by of arrest in 50% of cases

and grant Police bail to most (90%) of these Police can grant child bail but NOT remand

into custody If Police refuse or if A objects to conditions

set, then decision reviewed by a Bail Justice S 10 (2) or appeal

A must be taken before a Bail Justice ASAP (usually within 24 hours)

Bail Justice remand to crt next working day or, if not practical, then within 2 days

Bail Hearings ( BA s 8) Different from normal hearingsMagis more questions and more informationmatters excluded from trial eg hearsay, priors,

past bail history, strength of case a/st A including likelihood of A being convicted considered

A can’t be cross-examined about alleged offence at hearing + admissions can’t be used at trial

TEST: “evidence that is credible or trustworthy”Police informant usually at bail hearingProsecution presents first A (and surety) can be present via video link upEvidence can be oral or by affidavit

4. BAIL TESTS- Overview1. Pro Bail presumption (P to rebut)

2. Presumption overturned ie reverse onus on A, ---for specified serious offences (murder, treason and some drugs)

and/orWhere A poses ‘an unacceptable risk’

Reverse onus in specified serious offences BA S 13To get bail in murder, treason and some drugs A must prove ‘Exceptional circumstances’ (‘High hurdle’; Re

Whiteside (1999) VSCNo special formulae but must be ‘unusual or

uncommon circumstances’, Excessive delay can be ‘exceptional

circumstance’ if extreme Mokbel v DPP (No 3)R v Waters A murder of father 8 years ago,

possible provocation defence and possibly 19 months in custody awaiting trial

Reverse Onus ‘Show Cause’ indictable Offences BA S 4To get bail A must ‘show cause’ in certain classes

of offences

A committed indictable offences while ‘at large’ awaiting trial for other crimes

Stalking under some circumstancesFamily Violence intervention breachAggravated burglary involving weaponsArson causing deathVarious drug offencesOffence a/st Bail act itself

& Decision maker must give reasons for granting Bail (BA 12 (1) (b) & 12 (2)

‘Unacceptable Risk’ Catch-All BA S 4 (2) (d) (i)Bail must be refused (ie presumption pro

bail overturned) where A ‘an unacceptable risk’ if released would:

- Fail to attend court- Commit offences while on Bail- Endanger safety or welfare of public- Interfere with witnesses or obstruct justice

Burden of proof on prosecution s 4 (3) (f) – decision maker can consider

conditions to address the relevant risk factors

‘Unacceptable Risk’ factors BA S4(3)Crt can consider,Nature and seriousness of offenceCharacter, antecedents and association of AHome environment of AHistory of previous BailStrength of evidence a/st AAttitude of victim NEW s 3A ‘take account of person’s

cultural background Court can impose conditions to mitigate

the risk.

5. Bail Conditions – Sequence 1 S5 (1) Mandatory condition that A will

attend crt for hearing or trial on date specified.

5 (2) Court also to consider conditions in set sequence

(a)Own undertaking without conditions(b)Own undertaking with conditions(c)Release with surety of stated value or

deposit of money with or without conditions

Decision Making Sequence 2...5 (3) Crt only to impose conditions in order to

reduce likelihood of the A (a)Fail to attend crt(b)Commit an offence on bail(c)Endanger safety or welfare of public(d)Interfere with Ws or obstruct course of justice in

any matter before the crt5 (4) (a) Any CONDITIONS must be no more

onerous than is necessary to achieve 5 (3) AND5 (4) (b) reasonable for offence and circumstances

of A

Examples of Bail Conditions

-surrender passport, -report to police, -reside at specific address, -not be in CBD or other address/location,- attend drug rehab or support, -not communicate with specific person, associates or witnesses- attend specialist service for eg Aboriginal offenders

Sequence 3: Deposit of Money ConditionContinuing down the sequence of conditions...5 (5) Consider means of A re imposing $

condition and the amount5 (6) If A doesn’t have money – crt must

consider whether any other condition would achieve same end

Bail Conditions Sequence 4: SuretiesNominated person can act as guarantor for

A to appear in crt Surety must be over 18, not under any legal

disability, have prop or money for suretySurety will lose their money if A doesn’t

appear (Mockbel)Surety can enlist assistance of police to get

A to court if worriedSurety can go to court to get out of

obligation

6. Breach & ForfeitureIf A fails to appear in crt, Police can arrest

without warrantBreach of CONDITIONS not criminal offence

but A can be arrested and brought back to court (BA S 24 (1) & (2)

If A fails to attend Crt ‘without reasonable cause’ then criminal offence of 12 months imprisonment (BA S 30 (1)

Court orders for payment of the surety are issued, and in default, Court orders to seize and sell security are made – Crown Proceedings Act 1958.

7. Further Bail Applications and Appeals BA s 18 (1) & (4) & s18 AG and s 18AIf Bail refused or A objects to conditions A can make 2nd

application to Magi or higher court IF:- A was not legally represented first timeOr- New facts or circumstances have arisenOr- Revocation decision made by a Bail JusticeAppeals to Supreme court by A for de novo hearing for bail or to

vary conditionsto Supreme Court from DPP if bail decision maker erred

in law or decision manifestly wrongA and DPP can appeal to Crt of Appeal from Supreme crt

8. Moot Scenario Mr JA is arrested in Victoria because he has

been charged with sexual offences in England and Sweden.

JA has also been embroiled in leaking top secret documents effecting the national security of many nations but not charged for this.

Mount the arguments of -P that he be refused bail - JA that he be granted bail

- If Bail Granted on what conditions?