Bail Applications in Victoria: Key Cases and Principles
What is Bail ?
Bail applications can be a crucial stage in a criminal case. If an accused person is granted bail, they are released from custody while awaiting trial or sentencing. However, if bail is refused, they must remain in custody until their case is resolved. The Bail Act 1977 (Vic) sets out the legal framework for granting bail to accused persons in Victoria.
Since the 2018 reforms, the Act requires that an applicant shows a 'compelling reason' why their detention is not justified. This means that bail must be refused unless an applicant can demonstrate that their continued detention is not justified. In applying this test, courts must consider two key factors that may weigh against each other: the safety of the community and the presumption of innocence and right to liberty.
Recent Cases relevant to Bail Applications
Recent cases have provided guidance on how courts should interpret and apply the Act. In Re Ceylan [2018] VSC 361, the court held that the Act must be interpreted by its text, context, and purpose. To establish a compelling reason for bail, an applicant must demonstrate that their detention is not justified by considering all relevant circumstances, including the strength of the prosecution case, the accused's personal circumstances, and criminal history. This requires a synthesis of all the factors that compels the conclusion that detention is not justified. A 'compelling reason' might be described as one that is 'difficult to resist.'
In Re Johnstone (No 2) [2018] VSC 803, the court held that a 'compelling reason' can be shown by an applicant having been remanded in custody longer than any likely sentence of imprisonment. This is a very relevant circumstance and, generally, is a compelling reason justifying the grant of bail. To overcome this factor, there would have to be significant countervailing factors or circumstances affecting the synthesis required to find compelling reasons under section 4C of the Act.
In Re Gaylor [2019] VSC 46, the court emphasized that if granting an applicant bail is likely to be in the community's interest, then this is a principal factor supporting the existence of a compelling reason. Factors such as a low risk of the offender endangering public safety, real prospects of rehabilitation, and an applicant's compliance with conditions of bail and seeking treatment will inform the court of their prospects of rehabilitation and an appropriate sentence.
If an accused person can establish a compelling reason for bail, the court may then consider whether any conditions should be imposed to manage any risks to the community. These conditions might include reporting to police, surrendering passports, or having a surety provide a financial guarantee. If an accused person breaches these conditions, their bail may be revoked, and they may be returned to custody.
In summary, seeking bail in Victoria can be a complex and challenging process. It is crucial to engage an experienced criminal defence lawyer who can provide tailored advice and representation. At Dhillon Legal, we have extensive experience in bail applications.
