1. Criminal Procedure :Bail

2. Lecture Outline 1. Introduction 2. Bail Decision Makers
3. Process for Bail
4. Bail Tests
5. Bail Conditions
6. Breach & Forfeiture
7. Further Bail Applications and Appeals
8. Moot Scenario

3. 1. Introduction
Bail = 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

4. 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

5. 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

6. 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

7. Bail Hearings ( BA s 8) Different from normal hearings
Magis more questions and more information
matters 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 hearing
Prosecution presents first
A (and surety) can be present via video link up
Evidence can be oral or by affidavit

8. 4. BAIL TESTS- Overview Pro Bail presumption (P to rebut)
2. Presumption overturned ie reverse onus on A, ---for specified serious offences (murder, treason and some drugs)
and/or
Where A poses ‘an unacceptable risk’

9. Reverse onus in specified serious offences BA S 13
To get bail in murder, treason and some drugs
A must prove
‘Exceptional circumstances’ (‘High hurdle’; Re Whiteside (1999) VSC
No 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

10. Reverse Onus ‘Show Cause’ indictable Offences BA S 4
To 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 circumstances
Family Violence intervention breach
Aggravated burglary involving weapons
Arson causing death
Various drug offences
Offence a/st Bail act itself
& Decision maker must give reasons for granting Bail (BA 12 (1) (b) & 12 (2)

11. ‘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

12. ‘Unacceptable Risk’ factors BA S4(3)
Crt can consider,
Nature and seriousness of offence
Character, antecedents and association of A
Home environment of A
History of previous Bail
Strength of evidence a/st A
Attitude of victim
NEW s 3A ‘take account of person’s cultural background
Court can impose conditions to mitigate the risk.

13. 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
Own undertaking without conditions
Own undertaking with conditions
Release with surety of stated value or deposit of money with or without conditions

14. Decision Making Sequence 2...
5 (3) Crt only to impose conditions in order to reduce likelihood of the A
Fail to attend crt
Commit an offence on bail
Endanger safety or welfare of public
Interfere with Ws or obstruct course of justice in any matter before the crt
5 (4) (a) Any CONDITIONS must be no more onerous than is necessary to achieve 5 (3) AND
5 (4) (b) reasonable for offence and circumstances of A

15. 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

16. Sequence 3: Deposit of Money Condition
Continuing down the sequence of conditions... 5 (5) Consider means of A re imposing $ condition and the amount 5 (6) If A doesn’t have money – crt must consider whether any other condition would achieve same end

17. Bail Conditions Sequence 4: Sureties
Nominated 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 surety
Surety will lose their money if A doesn’t appear (Mockbel)
Surety can enlist assistance of police to get A to court if worried
Surety can go to court to get out of obligation

18. 6. Breach & Forfeiture
If A fails to appear in crt, Police can arrest without warrant
Breach 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.

19. 7. Further Bail Applications and Appeals BA s 18 (1) & (4) & s18 AG and s 18A
If Bail refused or A objects to conditions A can make 2nd application to Magi or higher court
IF:
- A was not legally represented first time Or
New facts or circumstances have arisen
- Revocation decision made by a Bail Justice
Appeals
to Supreme court by A for de novo hearing for bail or to vary conditions
to Supreme Court from DPP if bail decision maker erred in law or decision manifestly wrong
A and DPP can appeal to Crt of Appeal from Supreme crt

20. 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?