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Criminal Procedure :Bail

Criminal Procedure :Bail. 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. 1. Introduction.

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Criminal Procedure :Bail

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  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 Or - 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?

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