Woods v DPP

[2014] VSC 1

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0226

WAYNE WOODS	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

S CR 2013 0224

LIRIM SALIEVSKI	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

S CR 2013 0227

NICHOLAS KIOURELLIS	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

S CR 2013 0225

DENG MAWN	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20, 23 and 24 DECEMBER 2013
DATE OF JUDGMENT:	17 JANUARY 2014
CASE MAY BE CITED AS:	WOODS v DPP
MEDIUM NEUTRAL CITATION:	[2014] VSC 1	Revised 9 September 2014

CRIMINAL LAW – bail – human rights – fundamental common law rights and liberties – whether applicants represent unacceptable risk – whether applicants showed cause why detention not justified – imposition of conditions compatibly with human rights of applicants – onus of proof with respect to unacceptable risk in show-cause situations – bail of child-accused – ‘presumption of innocence’, ‘liberty’, ‘freedom of movement’ - ‘unacceptable risk’, ‘exceptional circumstances’, ‘show cause’ - Bail Amendment Act 2010 (Vic) – Bail Amendment Act 2013 (Vic) – Bail Act 1977 (Vic) ss 4-5, Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 12, 21 and 25.

Wayne Woods v DPP

APPEARANCES:	Counsel	Solicitors
For the applicant	Ms P Murphy	Victoria Legal Aid
For the respondent	Mr J Kibel	Victoria Police Legal Services Department

Lirim Salievski v DPP

APPEARANCES:	Counsel	Solicitors
For the applicant	Mr A S Dickenson	Melasecca Kelly & Zayler
For the respondent	Mr J Ayres	Office of Public Prosecutions

Nicholas Kiourellis v DPP

APPEARANCES:	Counsel	Solicitors
For the applicant	Ms P Murphy	Victoria Legal Aid
For the respondent	Mr S Eley	Victoria Police Legal Services Department

Deng Mawn v DPP

APPEARANCES:	Counsel	Solicitors
For the applicant	Mr L Richter	Robert Stary Lawyers
For the respondent	Mr G Porter	Victoria Police Legal Services Department

HIS HONOUR:

1. Amendments to the Bail Act 1977 (Vic) were made by the Bail Amendment Act 2013 (Vic). They came into force on 20 December 2013 pursuant to a proclamation made under s 2(1) of the latter Act.[1]  The Bail Act now lists inclusively those conditions of bail which (experience tells) are commonly imposed,[2] makes it an offence to contravene most of those conditions[3] and commit indictable offences whilst on bail,[4] requires applications for further bail and variation of bail to be heard by the same judicial officer if reasonably practicable[5] and requires applicants usually to give three days notice of such applications to the informant and prosecution.[6] 

   [1]Victoria, Victoria Government Gazette, No S 419, 26 November 3013.

   [2]Bail Act1977 (Vic) s 5(2A).

   [3]Ibid s 30A.

   [4]Ibid s 30B.

   [5]Ibid ss 18(4) and 18AC(5).

   [6]Ibid s 18AK(2).

1. The four cases here are the first determined in this court under the amendments.  I determined the applications when sitting in the Practice Court.  Due to the pressure of court work, I gave only short reasons which I now provide in full.  The cases raise common issues and demonstrate that the amendments, and those made by the Bail Amendment Act 2010 (Vic) along similar lines, are particularly important for the formulation of conditions of bail and the relationship between bail and human rights.

Human rights

1. Everyone charged with a criminal offence is presumed to be innocent and the prosecution must prove the guilt of the accused beyond reasonable doubt.  Consistently with that presumption and prosecutorial onus of proof, bail ensures the liberty and other human rights of persons arrested on criminal charges.  In Victoria, those rights are to be found in the common law and the Charter of Human Rights and Responsibilities Act 2006 (Vic). The provisions of the Bail Act governing the entitlement of accused persons to bail and the conditions on which it may be granted have been designed to take those rights into account.  Liberty and human rights under the common law and the Charter are the proper context within which those provisions are to be understood and applied.  Because these rights are not absolute, they do not prevent the refusal of bail to an accused who, for example, represents an unacceptable risk of failing to appear at trial or pre-trial hearings, committing offences on bail, endangering the safety or welfare of the community or interfering with witnesses.

1. With respect to the importance of the presumption of innocence and the prosecutorial onus of proof, I would refer to this recent statement by Kiefel J in Lee v New South Wales Crimes Commission:[7]

The golden thread of the system of English criminal law is that it is the duty of the prosecution to prove the prisoner’s guilt.[8]  This is consistent with the presumption of an accused’s innocence.  It find expression as a fundamental principle of the common law of Australia.[9]

[7](2013) 87 ALJR 1082.

[8]Woolmington v Director of Public Prosecutions [1935] AC 462, 481 (Viscount Sankey LC).

[9](2013) 87 ALJR 1082, 1126 [174].

1. As to personal liberty, it has foundational significance in the scheme of the common law.  This was explained by Mason and Brennan JJ in Williams v The Queen:[10]

   [10](1986) 161 CLR 278.

The right to personal liberty is, as Fullagar J described it, ‘the most elementary and important of all common law rights’: Trobridge v Hardy[11]. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England ‘without sufficient cause’: Commentaries on the Laws of England (Oxford 1765), Bk.1, pp.120-121, 130-131. He warned:

[11](1955) 94 CLR 147, 152.

Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities.

That warning has been recently echoed.  In Cleland v The Queen[12], Deane J said:

It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.

The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes.[13]

[12](1982) 151 CLR 1, 26.

[13](1986) 161 CLR 278, 292.

1. I pointed out in Antunovic v Dawson,[14] a habeas corpus case, that the principle of personal liberty is derived from two related foundational principles of the common law, as explained in Halsbury:

the subject may say or do what he pleases, provided he does not transgress the substantive law, or infringe the legal rights of others, whereas public authorities (including the Crown) may do nothing but what they are authorised to do by some rule of common law or statute. [15]

I went on draw attention to the equal application of the right of personal liberty to all persons:[16]

At common law, the right to personal liberty is inherent in every human being.  Blackstone said the rights belonged to persons ‘merely in a state of nature’.[17]  He said these ‘rights and liberties [were] our birthright to enjoy entire’, unless constrained by law.[18]  The courts have long treated the right to liberty and access to habeas corpus as ‘inherent’[19] and a human ‘birthright’.[20] 

[14](2010) 30 VR 355, 359 [6]-[7] (‘Antunovic’).

[15]Butterworths, Halsbury’s Laws of England, (1954) vol 7, 195-196 (footnotes omitted).

[16](2010) 30 VR 355, 359-60 [9].

[17]William Blackstone, Commentary on the Laws of England  (1765) vol 1, 119. 

[18]Ibid 140.

[19]Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36, 79 (Isaacs J).

[20]See eg Opinion on the Writ of Habeas Corpus (1758) 97 ER 29, 33 per Wilmot J; Ex parte Nichols [1839] NSWSupC 76 (12 October 1839) (Willis J).

1. In relation to bail, it is apposite to recollect that the principle of personal liberty is wider than freedom from unlawful detention.  It encompasses freedom from unlawful restraint upon movement as well.  The law of habeas corpus is based upon the protection of personal liberty in that wider sense,[21] as explained by Sharpe et al in their leading text:

The idea of personal liberty - that is, the physical freedom to come and go as one pleases - is considered to possess special value in the common law tradition.  The importance which is attached to habeas corpus parallels this value.[22]

So, in Ruddock v Vadarlis,[23] French J was considering whether habeas corpus applied to a restraint falling short of actual detention and complete loss of freedom.  His Honour held that it was necessary to determine ‘whether on the facts of the case there [was] a restraint on liberty which is not authorised by law.  The relevant liberty is freedom of movement’.[24]

[21]Antunovic (2010) 30 VR 355, 359 [6]-[7], 376-80 [99]-[113].

[22]R.J. Sharpe, Judith Farbey and Simon Atrill, The Law of Habeas Corpus (Oxford University Press, 3^rd ed, 2011) 194.

[23](2001) 110 FCR 491.

[24]Ibid 547 [210].

1. Turning from the common law to the Charter, it specifies the human rights to freedom of movement in s 12 and liberty and security of the person in s 21. Each of these rights is potentially engaged by the provisions of the Bail Act and when deciding whether or not to grant bail to a person under arrest on criminal charges and impose conditions of bail

1. Under s 12, every person ‘has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live’.

1. Section 21(1) provides that everybody has ‘the right to liberty and security’. By s 21(2), ‘arbitrary arrest or detention’ are prohibited. Under s 21(3), no one can be deprived of their liberty ‘except on grounds, and in accordance with procedures, established by law.’ Section s 21(5) requires that people arrested or detained on a criminal charge must be promptly brought to a court, tried without unreasonable delay or released. It is important to note that s 21(6) prohibits automatic detention prior to trial and authorises release on bail subject to guarantees of appearance for trail. Under the Bail Act, there is no automatic detention. By s 21(7), everyone detained by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of their detention, and the court must make a decision without delay and order release if it finds the detention to be unlawful. Section 21(8) prohibits civil imprisonment.

1. As president of the Victorian Civil and Administrative Tribunal, in Kracke v Mental Health Review Board[25] I considered the scope of the right to freedom of movement in s 12[26] and the right to liberty and security in s 24.[27]  I would adopt here what I said there about the centrality of those rights in the scheme of the Charter and human rights generally.  I said later in Antunovic[28] that ‘[t]hese rights are regarded as being of the first order of importance in terms of human rights protection.’

   [25][2009] VCAT 646 (‘Kracke’).

   [26]Ibid [578]-[588].

   [27]Ibid [621]-[666].

   [28](2010) 30 VR 355, 371 [67].

1. As set out in Kracke, the scope of the human right to freedom of movement in s 12 of the Charter is as follows:

The purpose of the right to freedom of movement in s 12 is to protect the individual’s right to liberty of movement within Victoria and their right to live where they wish. It is directed to restrictions on movements which fall short of physical detention coming within the right to liberty in s 21. The fundamental value which the right expresses is freedom, which is regarded as an indispensable condition for the free development of the person and society.[29]

[29][2009] VCAT 646, 149-50 [588].

1. Also as set out in Kracke, the scope of the human right to liberty and security of the persons in s 21(1) of the Charter is as follows:

The purpose of the right to liberty and security is to protect people from unlawful and arbitrary interference with their physical liberty, that is, deprivation of liberty in the classic sense. It is directed at all deprivations of liberty, but not mere restrictions on freedom of movement. It encompasses deprivations in criminal cases but also in cases of vagrancy, drug addiction, entry control, mental illness etc. The difference between a deprivation of liberty and a restriction on freedom movement is one of degree or intensity, not one of nature and substance.

The fundamental value which the right to liberty and security expresses is freedom, which is a prerequisite for individual and social actuation and for equal and effective participation in democracy.[30]

[30]Ibid 170 [664]-[665].

1. Other human rights in the Charter are potentially engaged by the provisions of the Bail Act and decisions concerning entitlement to bail and the conditions of bail.

1. For example and not exhaustively, s 10(c) of the Charter provides that a person must not be ‘subjected to medical … treatment without his or her full, free and informed consent’.  The imposition of a condition of bail requiring the accused to attend a place of and obtain medical and like treatment might engage this right.

1. Section 13(a) provides that a person has the right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.[31]  A denial of bail or the imposition of certain conditions of bail may limit the capacity of the accused to enjoy these rights.[32]

   [31]On the scope of these rights, see Kracke [2009] VCAT 646, [619]-[620] (Bell J) and Director of Housing v Sudi [2010] VCAT 328, [29] (Bell J).

   [32]In R v Connors [2012] ACTSC 80 (28 May 2012) Higgins CJ held that the right to privacy in s 12 of the Human Rights Act 2004 (ACT), which our s 13(c) mirrors, was engaged by a condition of bail that the accused submit to urine testing. His Honour upheld the condition as being compatible with human rights because it was imposed for a legitimate purpose which was ancillary to bail: [34].

1. Section 16(1) provides that all persons have ‘the right of peaceful assembly’ and s 16(2) provides that they have ‘the right to freedom of association’.  The rights to assemble and associate with other persons do not just apply in the familiar contexts of association for political and industrial purposes but also in the contexts of association for cultural, social and familial purposes.  Bail conditions limiting or prohibiting contact between the accused and other persons may interfere with the exercise of these rights.

1. Section 19(2) of the Charter acknowledges the distinct culture of Aboriginal persons. Consistently with this provision, s 3A of the Bail Act requires the court to take into account any issues that arise due to the Aboriginality of a person.

1. Section 25(1) of the Charter provides that a person charged with a criminal offence ‘has the right to be presumed innocent until proved guilty according to law’. As we have seen, the presumption of innocence is both a fundamental principle of the common law and a human right. The significance of the presumption of innocence in bail applications has long been acknowledged.[33]  In Re Heenan,[34] Whelan J said that, with bail applications, the court ‘starts with the presumption of innocence’.

   [33]See eg DPP (Vic) v Cozzi (2005) 12 VR 211, 217 [33] (Coldrey J) (‘Cozzi’); Re Asmar [2005] VSC 487 (29 November 2005) [25] (Maxwell P) (‘Asmar’).

   [34][2005] VSC 49 (3 March 2005) [3].

1. It can be seen that decisions about entitlement to bail and the conditions of bail potentially can raise serious human rights issues which require consideration by the court or decision-maker concerned. In that consideration, it is important to note that, under s 7(2), the human rights in the Charter are not absolute and may be subject to limits prescribed by law which are reasonable and demonstrably justified in a free and democratic society. By that provision, a limitation may be found justified after the following factors are considered:

(a)       the nature of the right;

(b)       the importance of the purpose of the limitation;

(c)       the nature and extent of the limitation;

(d)      the relationship between the limitation and its purpose; and

(e)       any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

1. The provisions of the Bail Act governing entitlement to bail and the conditions of bail are compatible with human rights if they meet the standard of justification prescribed by s 7(2) of the Charter. It is clear that the intention of the legislature is that the provisions are to be applied, and decision about bail are to be made, with this in mind.

1. The connection between bail and human rights may be illustrated by reference to decisions of the European Court of Human Rights under the Convention for the Protection of Human Rights.[35]  Article 5(3) of the Convention provides:

Everyone arrested or detained [on reasonable suspicion of having committed a criminal offence] shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial.

[35]Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as amended by Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 11 May 1994, ETS No 155 (entered into force 1 November 1998), and Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, opened for signature 13 May 2004, CETS No 194 (entered into force 1 June 2010).

1. The rights created imposed by 5(3) were considered in Aleksanyan v Russia.[36]  According to the court,[37] art 5(3) is interpreted such that ‘[a] person charged with an offence must always be released pending trial unless the state can show that there are “relevant and sufficient” reasons to justify the continued detention.[38]’  The persistence of reasonable suspicion that the accused had committed an offence is a relevant and sufficient reason only for a certain reasonable period after which other grounds must be established for the deprivation of liberty.[39]

   [36](2011) 52 EHRR 18 (‘Aleksanyan’).

   [37]Ibid [177].

   [38]See, as a classic authority, Wemhoff v Germany (1979–80) 1 EHRR 55, [12] (‘Wemhoff’) and Yagcı and Sargin v Turkey (1995) 20 EHRR 505, [52] (‘Yagci and Sargin’).

   [39]Aleksanyan (2011) 52 EHRR 18, [177]; Rokhlina v Russia [2005] ECHR 227 (7 April 2005) [66] (‘Rokhlina’).

1. As summarised in Aleksanyan,[40] the case law of the court has developed four basic acceptable reasons for refusing bail: ‘the risk that the accused will fail to appear for trial;[41] the risk that the accused, if released, would take action to prejudice the administration of justice,[42] or commit further offences,[43] or cause public disorder.[44] ‘

   [40](2011) 52 EHRR 18, [178].

   [41]See Stögmüller v Austria (1979–80) 1 EHRR 155, [15].

   [42]See Wemhoff (1979–80) 1 EHRR 55, [14].

   [43]See Matznetter v Austria (1979–80) 1 EHRR 198, [9].

   [44]See Letellier v France (1992) 14 EHRR 83, [51].

1. It is established that the bail authority must carefully consider the facts and circumstances of the individual case and determine whether the continued detention of the accused is justified.[45]  As was held in Clooth v Belgium,[46] reliance by the prosecution on ‘general and abstract’ considerations and a ‘stereotyped formula’, without more, will be insufficient.  Particular allegations, such that the accused would disturb public order, must be based on facts reasonably capable of showing that kind of threat.[47]  Moreover, generalised concerns that an accused might abscond are not regarded as sufficient justification for refusing bail.  For example, in W v Switzerland[48] the court stated:

the danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention.[49] In this context, regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts.[50]

Similarly, reference to a person’s record of prior offending is not sufficient, without more, to justify a conclusion that he or she might re-offend.[51]  The apprehension of danger associated with re-offending must be ‘plausible’ and refusal of bail must be ‘appropriate, in the light of the circumstances of the case and in particular the past history and the personality of the person concerned.[52]‘ Lack of a fixed residence (eg homelessness) or of work or family ties are relevant but not determinative.[53]

[45]Matznetter v Austria (1979–80) 1 EHRR 198, [8]-[9]; Clooth v Belgium (1992) 14 EHRR 717, [40] (‘Clooth’); Yagcı and Sargin (1995) 20 EHRR 505, [50]; Panchenko v Russia [2005] ECHR 72 (18 February 2005) [106].

[46](1992) 14 EHRR 717, [44]

[47]Letellier v France (1992) 14 EHRR 83, [51].

[48](1994) 17 EHRR 60, [33] (applied Yagci and Sargin (1995) 20 EHRR 505, [52]).

[49]See, as the most recent authority, Tomasi v France (A/241-A): (1993) 15 EHRR 1, [98].

[50]See, Mutatis Mutandis, Neumeister v Austria (No. 1) (A/8): (1968) 1 EHRR 91, [10].

[51]Muller v France [1997] ECHR 11 (18 February 1997) [44].

[52]Clooth (1992) 14 EHRR 717, [40].

[53]Sulaoja v Estonia (2006) 43 EHRR 36, [64].

1. The court has commented adversely on reverse-onus provisions and sought to confine their field of operation.  In Rokhlina v Russia,[54] the principles were  summarised thus:

Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.  Any system of mandatory detention on remand is per se incompatible with [art 5(3)] of the Convention, it being incumbent on the domestic authorities to establish and demonstrate the existence of concrete facts outweighing the rule of respect for individual liberty.  Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of [art 5] of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively-enumerated and strictly defined cases …[55]

[54][2005] ECHR 227 (7 April 2005).

[55]Ibid [67] (footnotes omitted); cf R (O) v Crown Court at Harrow [2007] 1 AC 249 (HL(E)).

1. Finally, continued detention is not compatible with human rights under art 5(3) unless the bail authority has considered alternative measures for ensuring the appearance of the accused at trial.[56]  Thus, in Sulaoja v Estonia[57] the court held that the detention violated the human rights of the applicant because guarantees of appearance at trial and a prohibition on him leaving his place of residence were not considered. 

   [56]Jablonski v Poland [2000] ECHR 685 (21 December 2000) [83]-[84].

   [57](2006) 43 EHRR 36, [64].

1. The Human Rights Act 2004 (ACT) is very similar to the Victorian Charter. Human rights have been taken into account in the ACT in relation to bail. For example, in Re Seears[58] Refshauge J was required by the Bail Act 1992 (ACT) to take the likelihood of reoffending into account. After examining the jurisprudence of the European Court of Human Rights, His Honour said this of that requirement:

Thus, the fear of future offending must not be assumed merely from the applicant’s antecedents and the view of the risk must be reasonably held.  This will require a court not merely to assess the risk of reoffending but also to consider other avenues such as bail conditions which may achieve the end desired, namely public safety, which must be made effective.  It is not merely a function of viewing the criminal record of the applicant but looking at all the circumstances and coming to a view of the statutory test, namely ‘the likelihood of committing an offence’, particularly having regard to the well-known difficulty in making exact predictions of recidivism and dangerousness.[59]

[58][2013] ACTSC 187 (22 August 2013).

[59]Ibid [29] (footnotes omitted).

1. As can be seen from the decisions of the European Court of Human Rights and that of Refshauge J in Seears, a fundamental requirement of human rights law in the context of bail is that the individual facts and circumstances must be properly considered before the severe step of depriving the accused of his or her liberty is taken.  The need to approach the determination of applications for bail in this way is well established in this court.  For example, in Re Moloney[60] Vincent J was determining an application to which the exceptional circumstances test (see below) applied.  Of the need to take all of the circumstances into account, his Honour said:

A number of decisions which have been handed down by judges in this court … make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional.  What is ultimately of significance is that, viewed as a whole, the circumstances be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.[61]

Applying that approach in Re Whiteside,[62] another exceptional circumstances case, Warren J (as the Chief Justice then was) stressed that ‘each case will be different and each set of facts and circumstances will need to be considered and weighed up before determining whether or not exceptional circumstances are made out’.[63]  As we will see, this approach is generally followed not just in the application of the exceptional circumstances test but also in cases to which the show cause and unacceptable risk tests (also see below) apply.

[60]Unreported, Supreme Court of Victoria, Vincent J, 31 October 1990 (‘Moloney’).

[61]Ibid 1.

[62][1999] VSC 413 (6 October 1999) (‘Whiteside’).

[63]Ibid [14].

1. Before turning to those tests, I want to draw attention to the purpose of bail as discussed in the authorities.  Under the Bail Act, the court is required to take into account a number of matters which always include whether the accused represents an unacceptable risk of failing to answer bail, committing offences on bail, endangering the safety or welfare of the public or interfering with witnesses (s 4(2)(d)).  Without in any way doubting the importance of the other considerations, the primary purpose of bail is to ensure the attendance of the accused at his or her trial and the associated preliminary hearings.[64]  As was held in R v Mahoney-Smith[65] in the Supreme Court of New South Wales by O’Brien J, ‘the grant or refusal of bail is determined fundamentally on the probability or otherwise of the applicant appearing at Court as and when required’.[66]  R v Sefton[67] was decided in our court under the common law.  Cussen J held that, in ‘ordinary cases’, bail was granted ‘if by taking recognisances … appearance can be practically ensured’.[68]  In R v Light,[69] also a common law case, Sholl J held this to be the ‘first matter of consideration’. It was described as ‘the primary question’ by Gillard J in Re Paterson[70] and Eames J in Director of Public Prosecutions v Ghiller.[71]  Both of these cases were decided under the Bail Act.

   [64]Cozzi (2005) 12 VR 211, 217 [33] (Coldrey J); R v Watson (1947) 64 WN (NSW) 100 (Herron J) (‘Watson’), approved R v Light [1954] VLR 152, 155-7 (Sholl J) (‘Light’).

   [65][1967] 2 NSWR 154 (‘Mahoney-Smith’); see also Watson (1947) 64 WN (NSW) 100 (Herron J) (approved Light [1954] VLR 152, 155-7 (Sholl J)) and R v Walters [1979] 2 NSWLR 284, 285 (Cross J).

   [66]Mahoney-Smith [1967] 2 NSWR 154, 158.

   [67][1917] VLR 259.

   [68]Ibid 262.

   [69][1954] VLR 152, 157.

   [70](2006) 163 A Crim R 122, 127 [29] (‘Paterson’).

   [71][2000] VSC 435 (28 September 2000) [43] (‘Ghiller’); cited with approval Asmar [2005] VSC 487 (29 November 2005) [15] (Maxwell P) and Re Metekingi [2012] VSC 366 (23 August 2012) [22] (Robson J) (‘Metekingi’).

1. Of course, a refusal of bail will usually result in deprivation of liberty.  But that must be for the purposes of bail and not for the purpose of punishment.[72]  Having regard to the presumption of innocence and the prosecutorial onus of proof, bail cannot be used for that or other impermissible purposes, such as pressuring an accused to cooperate with police, however strong the case for the prosecution may be.  

   [72]Re Serratore (1995) 81 A Crim R 363, 374 (Kirby P).

1. Accordingly, in R v Greenham,[73] a common law case, Mann CJ held:

The discretion in certain circumstances to refuse bail can never be used by way of punishment or by way of putting coercion on a prisoner to do something he is not bound in law to do.[74]

So also, in Ghiller,[75] a Bail Act case, Eames J held:

A bail application is not concerned with determining the issues which the jury must decide, nor is it concerned with punishing a person in advance of that adjudication by a jury.[76]

[73][1940] VLR 236.

[74]Ibid 239; see also Mahoney-Smith [1967] 2 NSWR 154, 158 (O’Brien J).

[75]Ghiller [2000] VSC 435 (28 September 2000) [43].

[76]Ibid; cited with approval Asmar [2005] VSC 487 (29 November 2005) [25] (Maxwell P).

1. An important purpose of the criminal law is to ensure the safety of the community.  Members of the public look to the government and the courts for protection against crime and the just punishment of offenders.  While the first consideration in bail applications is whether the accused will appear to answer the charges, whether he or she would commit further offences on bail, endanger the safety or welfare of the public or interfere with witnesses are mandatory statutory considerations (s 4(2)(d)).  This too is the position at common law, as expounded in leading authorities such as Light[77] and R v Watson.[78]

   [77][1954] VLR 152, 155-7 (Sholl J), followed Paterson (2006) 163 A Crim R 122, 127-8 [30] (Gillard J).

   [78](1947) 64 WN (NSW) 100, 102 (Herron J), followed Light [1954] VLR 152, 155-7 (Sholl J).

1. Reflecting the importance of the presumption of innocence and the prosecutorial onus of proof as well as the right of all persons to liberty and freedom of movement at common law, s 4(1) has always provided, and still provides, that accused persons being held in custody have a presumptive entitlement to bail, as at common law.[79] However, the presumptive entitlement to bail is displaced in the circumstances specified in s 4(2) (exceptional circumstances) and (4) (show cause).  After I deal with these circumstances, it will be necessary to refer to the amended provisions which expressly authorise the imposition of conditions bail and which must be applied in the cases before the court.

   [79]Light [1954] VLR 152, 157 (Sholl J).

Exceptional circumstances

1. By s 4(2)(a)-(aa), persons charged with certain specified offences, including murder and serious drug offences, must not be granted bail ‘unless the court is satisfied that exceptional circumstances exist which justify the grant of bail’.

1. These provisions were not present in the legislation as originally enacted.  The ‘exceptional circumstances’ test was introduced into s 13 for persons charged with murder in 1981.[80]  The coverage of the test was extended (by incorporation into s 4(2)) for persons charged with serious drug offences in 1986.[81]

   [80]Bail (Amendment) Act 1981 (Vic) s 3.

   [81]Bail (Amendment) Act 1986 (Vic) s 4(c).

1. According to authorities which bind me, as bail cannot be granted to an accused person in this category unless the court ‘is satisfied’ that the condition is met, the onus is on the accused to satisfy the court that exceptional circumstances justify the grant of bail.[82]  The precise nature of that onus has not yet been fully explored.

   [82]Dale v DPP [2009] VSCA 212 (21 September 2009) [28] (Maxwell P, Nettle JA and Lasry AJA) (‘Dale’);  Barbaro v DPP (Cth) (2009) 20 VR 717, 718-19 [4] (Maxwell P, Vincent and Kellam JJA) (‘Barbaro’).

1. The Bail Act does not define ‘exceptional circumstances’.  Reflecting the ordinary and natural meaning of these words, it has been held that ‘there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant before those circumstances can be characterised as exceptional’.[83]  The category is not closed.  It was held by Warren J that ‘the hurdle is a high one, but … should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail’.[84]

   [83]Re Scott [2011] VSC 674 (14 November 2011) [14] (T Forrest J) (‘Scott’); see also DPP (Cth) v Tang & Ors (1995) 83 A Crim R 593, 596 (Beach J); DPP v Muhaidat [2004] VSC 17 (20 January 2004) (Kaye J) (‘Muhaidat’); Re Dalton [2013] VSC 690 (6 December 2013) [49] (Kaye J) (‘Dalton’).

   [84]Whiteside [1999] VSC 413 (6 October 1999) [10].

1. An individual circumstance, or combination of circumstances, can constitute exceptional circumstances.[85]  According to the authorities,[86] the circumstances which may be taken into account include the strength or weakness of the prosecution case (although the court might be cautious about evaluating this on necessarily inadequate materials), the bail status of comparable co-offenders, any delay between arrest and trial of the charges, the youth of the accused, strong family support or particular family obligations, the availability of stable accommodation or employment, the loss of employment or a business if bail is not granted, a low risk of flight or re-offending, the prior good character of the accused and his or her personal circumstances, including health and treatment needs.  The harsh conditions under which an accused person is being or would be held in custody on remand may constitute exceptional circumstances.[87] On its own, unreasonable or inordinate delay can constitute exceptional circumstances;  in combination with other considerations, any delay can do so.[88]  As we have seen, it is the (oft-cited) view of Vincent J in Moloney that the court must be persuaded that, viewed as a whole, the circumstances are exceptional ‘to the extent that, taking into account the very serious nature of the charge …, the making of an order admitting the person to bail would be justified’.[89]  This ‘appears to be a question of degree’ in each individual case.[90]

   [85]Moloney, (Unreported, Supreme Court of Victoria, Vincent J, 31 October 1990, 1-2); Whiteside [1999] VSC 413 (6 October 1999) [13] (Warren J); Cozzi (2005) 12 VR 211, 215 [20] (Coldrey J); Re Armstong [2013] VSC 111 (14 March 2013) [31]-[32] (Lasry J) (‘Armstong’).

   [86]Cozzi (2005) 12 VR 211, 214-16 [18]-[25] (Coldrey J); Re Wells [2008] VSC 29 (14 February 2008) [7]-[11] (Lasry J); Dalton [2013] VSC 690 (6 December 2013) [49]-[50] (Kaye J); Re Karam [2013] VSC 370 (17 July 2013) [7]-[14] (Bongiorno JA); Re Foxwell [2013] VSC 716 (19 December 2013) [9] (Dixon J) (‘Foxwell’).

   [87]Dale [2009] VSCA 212 (21 September 2009) [44] (Maxwell P, Nettle JA and Lasry AJA).

   [88]Ibid; R v Cox [2003] VSC 245 (1 July 2003) [15]-[20] (Redlich J); Re Creamer [2009] VSC 460 (7 October 2009) [27] (Whelan J), Foxwell [2013] VSC 716 (19 December 2013) [9] (Dixon J).

   [89]Moloney (Unreported, Supreme Court of Victoria, Vincent J, 31 October 1990) 1 (approved Whiteside [1999] VSC 413 (6 October 1999) [14] (Warren J); Cozzi (2005) 12 VR 211, 215 [19] (Coldrey J); Armstong [2013] VSC 111 (14 March 2013) [31] (Lasry J)).

   [90]Cozzi (2005) 12 VR 211, 216 [25] (Coldrey J).

1. Under binding decisions of the Court of Appeal,[91] the application of the exceptional circumstances and unacceptable risk tests involve a two-step process.  The court must first consider whether exceptional circumstances justify granting bail.  Even if the accused satisfies this test, bail must be refused if the prosecution establishes that the accused represents an unacceptable risk.  Both standards must be considered, the onus being on the applicant with respect to exceptional circumstances and the prosecution with respect to unacceptable risk.  However, when determining whether exceptional circumstances are established, it is permissible to take into account that an applicant does not represent an unacceptable risk.[92]  To that subject I now turn.

   [91]Dale [2009] VSCA 212 (21 September 2009) [27]-[28] (Maxwell P, Nettle JA and Lasry AJA); Barbaro (2009) 20 VR 717, 719 [6] (Maxwell P, Vincent and Kellam JJA).

   [92]Cozzi (2005) 12 VR 211, 216 [26] (Coldrey J)

Unacceptable risk

1. By s 4(2)(d), bail must be refused:

(d)      if the court is satisfied—

(i)that there is an unacceptable risk that the accused if released on bail would—

fail to surrender himself into custody in answer to his bail;

commit an offence whilst on bail;

endanger the safety or welfare of members of the public; or

interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;

…

(iii)that it has not been practicable to obtain sufficient information for the purpose of deciding any question referred to in this subsection for want of time since the institution of the proceedings against him.

1. This provision was present in the same form in the legislation as originally enacted in 1977.

1. Section 4(2)(d)(i) operates to require bail to be refused despite the presumptive entitlement to bail.  It applies only where ‘the court is satisfied’ that there is an unacceptable risk.  Therefore the onus is on the prosecution to persuade the court that the applicant does represent an unacceptable risk.[93]

   [93]Dale [2009] VSCA 212 (21 September 2009) [28] (Maxwell P, Nettle JA and Lasry AJA).

1. As the court has repeatedly emphasised, the question is not whether there is no risk, for there is always some risk if the accused is released on bail, but whether the risk is unacceptable.[94]  On the other hand, it was held by Redlich J in Haidy v DPP[95] that a risk may be unacceptable even though the prosecution has not established that the occurrence of the event is more probable than not.  According to his Honour, the prosecution had to establish that ‘there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable’.[96]

   [94]Paterson (2006) 163 A Crim R 122, 129 [36] (Gillard J); Haidy v DPP [2004] VSC 247 (22 April 2004) [14] (Redlich J) (‘Haidy’); Scott [2011] VSC 674 (14 November 2011) [23] (T Forrest J).

   [95][2004] VSC 247 (22 April 2004) [16].

   [96]Ibid.

1. In determining whether the circumstances constitute an unacceptable risk as specified in s 4(2)(d)(i), the court is required by s 4(3) to have regard to all relevant matters, including (but not limited to):

(a)       the nature and seriousness of the offence;

(b)the character, antecedents, associations, home environment and background of the accused;

(c)       the history of any previous grants of bail to the accused;

(d)      the strength of the evidence against the accused;

(e)the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;

(f)any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.

1. This provision was in substantially the same form when the legislation was originally enacted.  One important amendment was made by the Bail Amendment Act 2010 which introduced para (f) into s 4(3).  For the first time, an express link was thereby made between the imposition of conditions and the administration of the unacceptable risk test.  Previously there was authority for the proposition that it was implicitly permissible to take the imposition of conditions into account when determining whether an accused represented an unacceptable risk.  For example, in MacBainv Director of Public Prosecutions,[97] Nettle J formed the view that, if conditions of a particular kind were imposed, ‘the risk that the applicant would not appear and the risk that she would re-offend whilst on bail may be reduced to a level which should be regarded as acceptable in all the circumstances’.[98]  The amendment of s 4(3) to include para (f) makes clear that this is the correct approach and also underlines the significance of conditions under the modernised statutory regime.

   [97][2002] VSC 321 (9 August 2002).

   [98]Ibid [17].

1. The test in s 4(2)(d)(i) is expressed in terms of ‘unacceptable’ risk not in terms of the magnitude or degree of the risk.  Moreover, not all of the circumstances specified in s 4(3) relate to the degree of the risk.  It follows, as Redlich J pointed out in Haidy, that ‘[t]he degree of likelihood of the occurrence of the event may be only one factor which bears upon whether the risk is unacceptable’.[99]  Consistently with the presumption of innocence and the prosecutorial onus of proof, it is the overall effect of the multiplicity of considerations in the individual facts and circumstances of the case which must be considered.  In consequence, bail may be granted though a risk of offending or not answering bail is relatively high when other circumstances, such as inordinate delay between arrest of the accused and trial or a weak prosecution case, lead to the conclusion that the risk is not unacceptable, having regard to the presumed innocence, right to liberty and other human rights of the accused and relevant public interest considerations.  Conversely, a relatively low risk of reoffending may be overwhelmed by considerations on the opposite side, such as a high risk of not answering bail, which establish that the risk is unacceptable.[100]

   [99][2004] VSC 247 (22 April 2004) [18].

   [100]See Mokbel v DPP (No 3) [2002] VSC 393 (4 September 2002) [10] (Kellam J) (approved in Barbaro [2009] VSCA 26 (3 March 2009) [41] (Maxwell P, Vincent and Kellam JJA); Haidy [2004] VSC 247 (22 April 2004) [18]-[19] (Redlich J); R v Wakefield (1969) 89 WN (Pt 1) (NSW) 325, 327 (Cross Ch QS).

1. Now to circumstances requiring the applicant to show cause why his or her detention is not justified.

Show cause

1. By s 4(4)(a)-(d), persons who allegedly commit indictable offences while awaiting trial for an indictable offence or who are charged with specified offences[101] cannot obtain bail ‘unless the applicant shows cause why his detention in custody is not justified’.  If bail is granted, the judge or magistrate must include in the order a statement of the reasons for making the order (s 4(4)(d)(i)).

   [101]The specified offences include stalking (s 4(4)(b)), contravening a family violence intervention order (s 4(4)(ba)) or intervention order (ss (4)(4)(bb)), aggravated burglary (s 4(4)(c)) and certain drug offences (s 4(4)(ca)-(cc)).

1. These provisions were present in the same form in the Bail Act as originally enacted, although the category of applicable offences was then much narrower.

1. By the express terms of s 4(4)(a)-(d), the onus of showing cause is on the applicant.[102]  Again the precise nature of that onus has not yet been explored.  As with exceptional circumstances, the considerations which may be relevant to showing cause are not specified.  Each case must be assessed according to its own facts and circumstances.  A particular factor or (more usually) a combination of factors may result in an accused showing cause.[103]

   [102]DPP v Harika [2001] VSC 237 (24 July 2001) [41] (Gillard J) (‘Harika’); Haidy [2004] VSC 247 (22 April 2004) [8] (Redlich J); Asmar [2005] VSC 487 (29 November 2005) [11] (Maxwell P).

   [103]Harika [2001] VSC 237 (24 July 2001) [47] (Gillard J).

1. The relationship between the show cause and unacceptable risk tests was considered by Gillard J in Director of Public Prosecutions v Harika.[104] His Honour held that an applicant for bail to whom s 4(4)(a)-(d) applied first had to discharge the onus of showing cause why his or her detention was not justified. If this was done, the applicant then had to answer any submission by the prosecution in reliance on s 4(2)(d)(i) that the applicant represented an unacceptable risk. The two inquiries could overlap, but both had to be conducted and the onus shifted from the applicant to the prosecution.[105] 

   [104][2001] VSC 237 (24 July 2001).

   [105]Ibid [41]-[46].

1. To the contrary, in Asmar[106] Maxwell P decided that, where the applicant for bail was required by s 4(4)(a)-(d) to show cause, there is only one step in the process. The court must determine ‘whether the applicant has satisfied the Court that his/her detention in custody is not justified’.[107]  The unacceptable risk standard in s 4(2)(d)(i) does not come into play.  Issues relating to whether the applicant represented an unacceptable risk form part of the process of considering whether the applicant had shown cause why his or her detention in custody was not justified,[108] indeed would be at the ‘heart’[109] or ‘forefront’[110] of that consideration.[111]

   [106][2005] VSC 487 (29 November 2005).

   [107]Ibid [11].

   [108]Ibid [12].

   [109]Ibid.

   [110]Ibid [13].

   [111]Ibid.

1. Gillard J later affirmed his view in Paterson.[112]  His Honour discussed the position at common law before the enactment of the Bail Act in 1977[113] and referred to the different specification of the unacceptable risk and show cause tests in s 4(2)(d)(i) and s 4(4)(a)-(d) respectively of the legislation as originally enacted.[114] In his view, s 4(2)(d)(i) and s 4(4)(a)-(d) always dealt with different topics.[115]  His Honour emphasised the practical consideration that usually the prosecution produced the evidence relating to unacceptable risk.  Just as the prosecution had to give notice and grounds of any opposition to bail (s 7(1)),[116] the onus was on the prosecution, in reliance upon such evidence, to establish any unacceptable risk.[117]  If the prosecution discharged that onus, bail had to be refused even where the applicant had shown cause why detention was not justified.[118]

   [112]Paterson (2006) 163 A Crim R 122.

   [113]Ibid 125 [20], 129 [39].

   [114]Ibid 124 [15].

   [115]Ibid 130 [41].

   [116]Ibid 124 [9].

   [117]Ibid 126-7 [26].

   [118]Ibid 130 [41].

1. The Court of Appeal has not yet determined which of the views in Asmar, on the one hand, and Harika and Paterson on the other, is correct.  The decision of Asmar has been frequently followed by judges of the trial division of this court.[119] 

   [119]Watts v DPP [2007] VSC 275 (17 July 2007) [5] (Bongiorno J); Re Magee [2009] VSC 384 (4 September 2009) [12] (J Forrest J); Re Hawli [2009] VSC 606 (17 December 2009) [16] (Whelan J); Re Bryans [2010] VSC 309 (2 July 2010) [3] (Pagone J); Re Flood [2010] VSC 605 (17 December 2010) [7] (Lasry J); El Ali v The Queen [2013] VSC 216 (1 May 2013) [7] (Curtain J); Re Gruevski [2013] VSC 349 (4 July 2013) [6] (T Forrest J); Re RS [2013] VSC 350 (10 July 2013) [18] (Elliott J); Re Handler [2013] VSC 166 (12 April 2013) [27] (Kaye J); Olaa v The Queen [2013] VSC 604 (1 November 2013) [11] (Dixon J).

1. I am respectfully in general agreement with the reasoning in Gillard J in Harika and Paterson.  It is more consistent with the presumption of innocence and the prosecutorial onus of proof.  A troubling feature of the interpretation of Maxwell P in Asmar is that, as regards unacceptable risk, it reverses the onus of proof.  It effectively transfers that onus from the prosecution (who would normally carry it, as with the prosecutorial onus generally) to the applicant (who would normally not, consistently with the presumption of innocence).  Having regard to the negative and evaluative nature of the test, this is surprising, for it is very difficult for someone to prove a negative, even more difficult for someone to prove that he or she does not offend a standard expressed in terms of risk and more difficult again when the standard is expressed in terms of unacceptable risk, especially because the relevant information will almost always be in the possession, or mostly in the possession, of the police. 

1. There is nothing in the nature of the show cause test in s 4(4)(a)-(d) which necessarily requires applicants to disprove what would normally be for the prosecution to prove, ie that the applicant represents an unacceptable risk of specified in s 4(2)(d)(i). The provisions creating the exceptional circumstances test in s 4(2)(a)-(aa) have not been interpreted in that way and I cannot see why the provisions creating the show cause test would be interpreted differently (and to the disadvantage of applicants) in that respect. Consistently with the presumption of innocence and the prosecutorial onus of proof, s 4(2)(d)(i) gives effect to the principle that the liberty and freedom of movement of the applicant is to be denied on the ground that he or she represents an unacceptable risk only where the prosecution discharges the onus of establishing that to the satisfaction of the court. With great respect to those who have concluded otherwise, I cannot see anything in the provisions of s 4(4)(a)-(d) or the other provisions of the Bail Act which reverses this onus in show cause situations.

1. On the proper interpretation of the provisions, the onus is on the applicant with respect to showing cause and on the prosecution with respect to unacceptable risk.  I respectfully agree with the conclusion in Harika and Paterson on the one hand and Asmar on the other that unacceptable risk is very important in relation to whether cause has been shown.  The applicant for bail and the prosecution contribute to the process of consideration according to the different onuses which they bear.  If the prosecution fails to establish unacceptable risk, this will count in the applicant’s favour in the show-cause assessment.  If the prosecution establishes unacceptable risk, this will count against the applicant in that assessment; in practical terms, it will be dispositive because, under s 4(2)(d)(i), bail must be refused where the prosecution satisfies the court that the applicant represents an unacceptable risk.

1. In the present cases, none of this made any practical difference.  Each applicant bearing a show-cause onus advanced his case on that issue, the prosecution accepted responsibility for advancing the case against the applicant on the issue of unacceptable risk and both the applicant and the prosecution made submissions as to whether cause had been shown and the applicant represented an unacceptable risk.  In that context, submissions were made as to conditions of bail, which were highly pertinent in each case.  To that subject I now turn.

Conditions of bail

1. Each of the four cases before me raises the general question of whether proposed conditions of bail assist in establishing to the court’s satisfaction that the accused does not represent an unacceptable risk and, if bail is to be granted, what the actual conditions of bail should be.  Such a risk assessment is central to the determination of an application for bail, as emphasised in this oft-cited[120] statement in Ghiller[121] by Eames J:

Even when an applicant for bail must show cause – that is, even when the presumption is that bail will not be granted unless the person makes out a case for bail – the primary question relevant to a grant of bail is whether a person will meet the conditions of bail and attend at the trial, and as required.[122]

[120]See eg Asmar [2005] VSC 487 (29 November 2005) [15] (Maxwell P); Metekingi [2012] VSC 366 (23 August 2012) [22] (Robson J).

[121][2000] VSC 435 (28 September 2000) [43].

[122]Ibid [43].

1. When considering the release of an accused person on bail, s 5(1) requires the court to impose a condition that the accused will surrender himself or herself into custody at the time and place of the hearing or trial and not depart without leave of the court and, if leave is granted, return at the specified time and surrender again into custody. This requirement reflects the main purpose of bail, which is to ensure the attendance of the accused at the hearing or trial of the charges. Under s 15(1) of the Act as originally passed, this condition formed part of the undertaking of an accused granted bail. Under the amendments introduced by s 8 of the Bail Amendment Act 2010, it became a mandatory condition of bail.

1. While the condition to attend hearings and surrender into custody is mandatory, the imposition of other conditions of bail (and requiring a deposit or surety) is discretionary.  Conceivably, an accused might be released on bail on that mandatory condition or no other or on that condition and other conditions, with or without a surety in both cases.

1. Those being the possibilities, s 5(2) requires the court to consider the conditions for release in a particular sequence:

(2)A court considering the release of an accused on bail must consider the conditions for release in the following order—

(a)release of the accused on his or her own undertaking without any other condition;

(b)release of the accused on his or her own undertaking with conditions about the conduct of the accused;

(c)release of the accused with a surety of stated value or a deposit of money of stated amount, with or without conditions about the conduct of the accused.

1. Section 5(2) was inserted into the Act by the Bail Amendment Act 2010. As originally enacted in 1977, s 5(1) imposed a similar obligation to consider the conditions of bail in a certain sequence only in relation to general conditions concerning sureties, securities and undertakings. Section 5(2) then made provision for the imposition of specific conditions as to which the obligation did not apply. The 2010 amendments abolished the distinction between general and specific conditions and imposed the obligation with respect to all conditions.

1. Section 5(2) in its current form is one of several provisions in s 5 which have been designed to ensure that the conditions of bail (if any) impose no greater limitation upon the liberty and human rights of the accused than the circumstances of the case require. Complying with the obligation to consider the conditions of release in the specified order makes the court turn its mind to the release of the accused on the least restrictive basis which is appropriate, without preventing it from granting bail on more restrictive conditions when required by the facts and circumstances of the case.

1. Sub-section 5(2A) is a new provision which sets out inclusively the conditions which may be imposed when conditions are called for. It provides

(2A)Without limiting subsection (2), a court may impose all or any of the following conditions about the conduct of an accused—

(a)       reporting to a police station;

(b)       residing at a particular address;

(c)subject to subsection (2B), a curfew imposing times at which the accused must be at his or her place of residence;

(d)that the accused is not to contact specified persons or classes of person;

Example

Witnesses, alleged victims or co-accused.

(e)       surrender of the accused's passport;

(f)geographical exclusion zones, being places or areas the accused must not visit or may only visit at specified times;

Example

Not attending a gaming venue, a venue that sells alcohol or a point of international departure.

(g)       attendance and participation in a bail support service;

(h)that the accused not drive a motor vehicle or carry passengers when driving a motor vehicle;

(i)that the accused not consume alcohol or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation under that Act;

(j)        that the accused comply with any existing intervention orders;

(k)any other condition that the court considers appropriate to impose in relation to the conduct of the accused.

These are defined in s 3 as ‘conduct conditions’.

1. As you can see, s 5(2A)(c) authorises the imposition of a condition in relation to a curfew. Under s 5(2B), any such curfew must not exceed 12 hours within a 24 hour period. Section 5(2B) sets a maximum not a usual standard.

1. Section 5(2A)(g) authorises the imposition of a condition in relation to attendance and participation by the accused at and in a ‘bail support service’. That expression is defined in s 3 as follows:

bail support service means a service provided to assist an accused to comply with his or her bail undertaking (whether or not that type of service is also provided to persons other than an accused on bail) including, but not limited to—

(a)       bail support programs;

(b)       medical treatment;

(c)counselling services or treatment services for substance abuse or other behaviour which may lead to commission of offences;

(d)counselling, treatment, support or assistance services for one or more of the following—

(i)        a mental illness;

(ii)       an intellectual disability;

(iii)      an acquired brain injury;

(iv)     autism spectrum disorder;

(v)a neurological impairment, including, but not limited to, dementia;

(e)       services to help resolve homelessness;

1. The provisions relating to attendance and participation by an accused at and in a bail support service reflect the increasing importance of such services in the management of alleged offenders on bail and the emphasis on their rehabilitation and support in the criminal justice system generally. As can be seen, a ‘bail support service’ is defined as a service ‘provided to assist an accused to comply with his or her bail undertaking’.  Conditions of this kind, when properly imposed, serve that primary purpose of bail and also operate for the benefit of the accused and the protection of the community. The imposition of such conditions, although previously common, did not have express legislative support.  The amendments provide that support.  In three of the cases before me, the imposition of such conditions form part of a combination of circumstances which satisfy me that there is no unacceptable risk.

1. However, it is equally important to note that conditions of this kind, like other conditions of bail, can only be imposed for the proper purposes of bail (s 5(2) and (3)), where a less onerous condition would not achieve the same purpose (s 5(4)(a)) and it is reasonable to do so having regard to the nature of the alleged offence and the circumstances of the accused (s 5(4)(b)) (see further below). It is not the intention of the legislature that this or any other condition be imposed as a matter of course. Moreover, the Charter gives everyone a right not to be ‘subjected to medical … treatment without his or her full, free and informed consent’ (s 10(c)). Consistently with this right, by s 30A(2) of the Bail Act it is not an offence to contravene such a condition by failing to attend and participate in a bail support service.   

1. Bail applications are interlocutory and usually heard in a summary way.  Therefore it is permissible for the court to make reference to hearsay evidence and assertions from the bar table.[123]  By reason of the necessarily limited nature of the process, the court will not often be in a position to impose compulsory treatment conditions on non-consenting applicants.  Moreover, most agencies will not accept involuntary or objecting participants.  In the bail context, conditions of this kind are meaningful in terms of mitigating risk and assisting the accused only if they are consensual, at least in the great majority of cases.  While it appears that the legislation contemplates the imposition of such conditions on non-consenting accused persons, I would exercise great caution before doing so.  In the present cases, the three relevant accused did give full, free and informed consent.  I would not have imposed the conditions unless they had done so. 

   [123]Beljajev v DPP (Vic) (1998) 101 A Crim R 362 (Kellam J) (cited in Cozzi (2005) 12 VR 211, 217 [33] (Coldrey J)).

1. As originally enacted in 1977, s 5(2)(a)-(d) allowed the court to impose specific conditions requiring the accused to answer bail, not to commit offences on bail, not to endanger the safety or welfare of the public or interfere with witnesses or obstruct the administration of justice. The Bail Amendment Act 2010 widened the power to impose conditions by allowing (in s 5(3) as then amended) conditions to be imposed to reduce the likelihood of those events happening or that conduct occurring. By virtue of s 5(2A) and (2B) as now amended, the court has extensive and explicit powers to impose conditions about the conduct of the accused.

1. The extensive nature of the explicit power to impose conditions, and the fact that contravention of most conditions of bail is now a criminal offence (s 30A(1)), raises questions about how the right to liberty and freedom of movement and other human rights of the accused are to be protected. Consideration is given to this subject in the legislation. The exercise of the power in s 5(2A) to impose conditions of bail is regulated by a suite of provisions specifying the purposes for which conditions may be imposed and the content and number of conditions.

1. As to the purposes of conditions, s 5(3) provides:

(3)A court considering the release of an accused on bail may only impose a condition in order to reduce the likelihood that the accused may—

(a)fail to attend in accordance with his or her bail and surrender into custody at the time and place of the hearing or trial; or

(b)       commit an offence while on bail; or

(c)       endanger the safety or welfare of members of the public; or

(d)interfere with witnesses or otherwise obstruct the course of justice in any matter before the court.

1. As to the content and number of conditions, s 5(4) provides:

(4)If a court imposes one or more conditions, each condition and the number of conditions—

(a)must be no more onerous than is required to achieve the purposes of subsection (3); and

(b)must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused.

1. It can be seen that s 5(3) requires conditions to be imposed only for the purposes of bail and related purposes. Section 5(4) requires conditions to be no more onerous than necessary for the achievement of that purpose and reasonable having regard to the nature of the alleged offence and the circumstances of the accused, ie the conditions must pass a parsimony test. By limiting the authority of the court to the imposition of conditions of that kind, the provisions are intended to operate such that any conditions are compatible with the human rights of the accused. Accordingly, there is no such thing as standard conditions of bail (other than the one mandatory condition) and any conditions must be proportionate in the circumstances of the case.

1. Similar provisions govern the imposition of conditions requiring a deposit of money or a surety.

1. As to requiring a deposit of money, s 5(5) and (6) provide:

(5)If a court is considering imposing a condition that requires a deposit of money of stated amount, the court must have regard to the means of the accused in determining—

(a)       whether to impose the condition; and

(b)       the amount of money to be deposited.

(6)If a court is satisfied under subsection (5) that the accused does not have sufficient means to satisfy a condition requiring a deposit of money of stated amount, the court must consider whether any other condition would achieve the purposes of subsection (3).

1. As to the provision of a surety, s 5(7) and (8) provide:

(7)If a court is considering imposing a condition that requires a surety of stated value, the court must have regard to the means of a proposed surety in determining—

(a)       whether to impose the condition; and

(b)       the value of the surety.

(8)If a court is satisfied under subsection (7) that the accused is unable to provide a surety with sufficient means, the court must consider whether any other condition would achieve the purposes of subsection (3).

1. It can be seen that the purpose of these provisions is to ensure that the power to impose a condition requiring a deposit of money or a surety is exercised in a manner which has regard to the individual means and circumstances of the accused.  The intention is that the imposition of such conditions is not to be an impediment to obtaining bail when other conditions with which the accused could comply would achieve the same purpose.

1. These provisions give effect to a general principle that excessive bail shall not be required.  This principle is deeply embedded in the law.  Provisions of the Bill of Rights Act 1688 (Imp)[124] give effect to it.  Among other reasons, that Act was enacted because ‘excessive bail has been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects’.[125]  It provides that ‘excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted’.[126]  These provisions of the Bill of Rights Act are in force in Victoria by virtue of ss 3 and 8 of the Imperial Acts Application Act 1980 (Vic).[127]  The continued operation of these provisions is by virtue of that ordinary Act and must therefore be subject to subsequent contrary legislation.[128]  The Bail Act is not actually contrary to the Bill of Rights Act because it gives effect to the same principle of not requiring excessive bail.  However, the Bail Act is a comprehensive scheme in relation to bail and supersedes the Bill of Rights Act in practical terms.  Even so, the Bill of Rights Act stands as testimony to the profound importance of the principle. 

   [124]1 William and Mary, sess 2 c 2.

   [125]Ibid Preamble cl 10.

   [126]Ibid s 10.

   [127]See generally Antunovic (2010) 30 VR 355, 362-3 [25]-[26], 367-8 [49]-[51].

   [128]See eg Clarkson v Director-General of Corrections [1986] VR 425, 435 (Tadgell J, Young CJ and Kaye J concurring).

1. There is an important note at the end of s 5 about the relationship between the human rights in the Charter and the provisions of that section concerning conditions of bail. It states:

Note

Sections 12 and 21 of the Charter of Human Rights and Responsibilities set out a right of freedom of movement and a right of liberty and security of the person.

Sections 23 and 25 of the Charter of Human Rights and Responsibilities set out the rights of children in the criminal process and the rights of an adult in criminal proceedings.

Section 7(2) of the Charter of Human Rights and Responsibilities sets out how a human right may be limited after taking into account all relevant factors, including any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

1. This note was included in s 5 when it was overhauled by the Bail Amendment Act 2010. By virtue of s 36(3A) of the Interpretation of Legislation Act 1984 (Vic), the note ‘forms part of the Act’. As was made clear in the explanatory memorandum,[129] the note was included upon the recommendation of the Victorian Law Reform Commission.  Explaining the rationale behind the recommendation[130] and the purpose of the note, the explanatory memorandum said the note was included to

ensure the Charter provisions are considered when bail conditions are imposed, particularly those that restrict freedom of movement and provide guidance on what may be considered ‘no more onerous than is required’.  The recommendation was also aimed at ensuring Charter provisions are considered when deciding applications to vary conditions and reviewing conditions.[131]

The second reading speech of the Attorney-General also made reference to the recommendations of the Victorian Law Reform Commission in relation to conditions of bail and the reform of s 5.[132]

[129]Explanatory Memorandum, Bail Amendment Bill 2010 (Vic) 5.

[130]As given by the Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007) 126.

[131]Explanatory Memorandum, Bail Amendment Bill 2010 (Vic) 8.

[132]Victoria, Parliamentary Debates, Legislative Assembly, 2 September 2010, 3607 (Rob Hulls, Attorney-General).

1. In summary, the court (and other bail decision-makers) now have explicit powers to impose particular conditions of bail when this is required for the purposes of bail and the ancillary purpose of protecting the community.  But the authority to impose such conditions is regulated by provisions which are designed to ensure that conditions which violate the human rights of the accused are not imposed.

1. I now give my full reasons for determination in the four individual cases.

Wayne Woods[133]

[133]By reason of s 534(1) of the Children, Youth and  Families Act 2005 (Vic), the applicant is identified by reference to a pseudonym and the witnesses in the proceeding in the Children’s Court and the particular venue of that court have not been identified.

1. Mr Woods is aged 17 years and 3 months.  He has been on remand at a Youth Justice Centre for two weeks.  This is his first experience of being in custody.  Bail was refused by a magistrate because he had not shown cause and represented an unacceptable risk.

1. The applicant is charged with (twice) committing an indictable offence while on bail awaiting trial for other indictable offences.  Section 4(4)(a) requires him to show cause why his detention in custody is not justified.

1. As the applicant is a child and did not present a security risk, I allowed him to sit in the body of the court next to his father and his case-manager from Youth Justice, rather than in the dock.  As best as I could in the Practice Court, I took account of his age in the procedure which I followed.

1. The applicant is charged with attempting to commit burglary and theft of a screwdriver on 6 August 2013.  He is also charged with intentionally causing serious injury, recklessly causing serious injury, affray, assaulting and hindering a protective services officer and related offences on 14 September 2013.  These offences involve allegations of a serious assault upon a person in company with a large group of others at the Malvern railway station.  The main victim is a worker at the Malvern railway station and was hospitalised.  The applicant is also charged with possessing a drug of dependence (cannabis) on 3 October 2013. 

1. The police informant filed an affidavit in opposition of bail.  It states that the applicant was arrested on 4 October 2013 when he and a co-accused were caught stealing property.  He was arrested again on 25 October 2013 on numerous counts of property damage and other charges.  Until recently he has been on bail but has breached the curfew and other conditions.  He has been engaging in inappropriate Facebook activity, including the posting of photographs and comments of and about the main victim.

1. The applicant relied on the evidence of his case-manager from Youth Justice, who was an impressive witness.  She told the court that she had known him since he was aged 15 years.  He had committed offences due to drug addiction which had escalated in the last two years.  She explained the steps towards rehabilitation which he had taken.  Initially he was not engaging very well with Youth Justice.  More recently he was much clearer in his thinking and had become motivated to desist from offending and remain free from drugs.  He had undertaken residential drug rehabilitation.  If he were to be released on bail, she or other Youth Justice officers would supervise his participation in an intensive bail program which would involve reporting and participation in drug and alcohol rehabilitation. 

1. The applicant has a bad record of street and property offences for which he has received non-custodial sentences in the Children’s Court.  He has received various sentences involving supervision by Youth Justice.

1. It was submitted on behalf of the applicant that he could be bailed on strict conditions to live with his parents and subject to a requirement to report and participate in the Youth Justice bail program.  He had shown genuine progress since previously offending and was not an unacceptable risk.  He would submit to a curfew and other conditions.

1. As I have noted, the applicant must show cause.  Whether he is an unacceptable risk is a central consideration.  He comes from a stable family and is supported by his parents but has allegedly been offending and breaching bail.  The prosecution case is not weak.  The applicant’s behaviour has been erratic due to drug abuse.  He has been attempting to rehabilitate.  The evidence shows he has been making more progress recently.  He is now engaging well with Youth Justice, who are prepared to supervise his participation in an intensive bail program and any conditions of bail. 

1. The applicant is a child and his long-term rehabilitation must be a strong consideration.  The detention of young people on remand can have deleterious consequences for them and the community which are out of all proportion to the purpose of ensuring appearance at trial and protecting the community.  It separates them from their families and the community, disrupts their education and employment, causes them to associate with other young offenders at a vulnerable time in their lives, often (as in the present case) leads to them being held in a police lock-up rather than a youth detention facility, deprives them of access to therapeutic programs and increases the risk of them being given a sentence of incarceration.[134]  Despite these powerful considerations supporting bail for young people, there will be cases where refusing bail is demanded as a last resort by even stronger countervailing considerations.  This is not one of them.

   [134]See Kelly Richards and Lauren Renshaw, ‘Bail and remand for young people in Australia: A national research project’ (Research Paper No 125, Australia Institute for Criminology, 2013).

1. I accept the prosecution submissions that the applicant’s behaviour and apparent pattern of offending would suggest that he is at risk of committing further offences on bail.  Without proper supervision and rehabilitation, he might endanger the safety and welfare of members of the public.  He is not at risk of failing to surrender himself into custody or interfering with witnesses or obstructing the course of justice.  Having regard to the evidence of his Youth Justice case officer, I am satisfied that the risks which do exist can be well managed by release on bail and appropriate conditions, with which he agrees.  With these conditions, he would not be an unacceptable risk.

1. Taking into account that the applicant is a youth, that he has not previously been in criminal custody and that, on proper conditions, he would not be an unacceptable risk if released on bail, I find that he has shown cause why his detention in custody is not justified.

1. On the evidence, release of the applicant on his own undertaking with only a condition to appear is out of the question.  He presents with risks of re-offending which can and should be managed.  Conditions are needed to reduce the likelihood of him committing further offences and endangering the safety or welfare of members of the public whilst on bail.  Release with conduct conditions is therefore warranted.  Having regard to the applicant’s changed attitude and circumstances, these conditions are likely to be kept.  A curfew condition is necessary in the circumstances but might be relaxed if the applicant becomes a lesser risk, and I expect he will.  A security or deposit of money would not significantly contribute to managing these risks.

1. Taking into account the requirement that the conditions should be no more onerous (in content and number) than necessary for the purposes of bail and reasonable, there should be conditions as to residence, curfew (for less than 12 hours within a 24 hour period, as required by s 5(2B)), participation in an intensive support program, not contacting co-accused or witnesses (except the informant) and not attending Malvern train station. There is no need for a surety.

1. I will not impose a condition that the applicant not use public transport at all, as requested by the prosecution.  He is a young person who is not old enough to drive a motor vehicle and moves about by bus, tram and train.  Imposing a condition that he not use public transport at all would impede his freedom of movement to an extent which would not be warranted for any legitimate purpose of bail.  There will be a condition that he not attend the Malvern train station where the main victim works.

1. The order of the court is that:

[Wayne Woods] is admitted to bail on his own undertaking on the following conditions:

1.He is to attend the … Children’s Court on 3 January 2014 for mention … [see s 5(1) of the Bail Act].

2.        He is to reside at [his parents’ home].

3.He is not to leave his place of residence between the hours of 8.00 pm and 6.00 am.

4.He is to participate in the intensive bail support program and obey all lawful directions of Youth Justice.

5.He is not to contact or associate with directly or indirectly the co-accused …

6.He is not to contact directly or indirectly any witness for the prosecution except for the informant or his nominee.

7.        He is not to attend the Malvern train station.

Lirim Salievski

1. Mr Salievski is aged 35 years and single.  He is remanded in custody to appear in the Melbourne Magistrates’ Court on 16 January 2014 for a two-day contested committal hearing in respect of serious criminal charges.  He has been in custody since his arrest on 31 July 2013.  A bail application was refused on 16 October 2013 by a magistrate.  He had earlier obtained bail in respect of previous criminal charges.  He complied with the daily reporting conditions of that bail from 28 March 2013 when it was granted until he was arrested on the subsequent charges.  A two-day contested committal in respect of these charges is listed to recommence part-heard on 26 February 2014.

1. The applicant must show cause why his detention in custody is not justified because he has been charged with an indictable offence whilst on bail for another indictable offence (s 4(4)(a)) and an offence of aggravated burglary and an indictable offence involving the actual or threatened use of a firearm (s 4(4)(c)). 

1. The applicant is charged with aggravated burglary (2), armed robbery, carrying a firearm when a prohibited person, blackmail, theft of a motor vehicle (2), harassing a witness, theft, extortion with threat to kill, making a threat to kill, false imprisonment, using a firearm in the commission of an offence, possessing amphetamines, possessing cannabis and dealing with property suspected of being proceeds of crime.  The charges relate to separate instances of alleged offending in February-July 2013, June 2013 and May-June 2013.  If the applicant is committed, the charges will be heard in the County Court of Victoria. 

1. The applicant has an extensive criminal history dating back prior to 1996.  He has numerous convictions for burglary, theft and similar offences.  He has a conviction for recklessly causing injury, recklessly endangering serious injury and a shocking driving record.  He has firearm offences and has served a number of terms of imprisonment, the most recent in 2011 for two months. 

1. It was submitted for the applicant that he had shown cause and was not an unacceptable risk because he had a good record of observing the conditions of his previous bail.  He was arrested on the subsequent charges when reporting as a condition of his previous bail.  He could not be treated as a danger to the community.  He had substantial ties with the Dandenong community where he had resided all his life.  He was not a risk of flight.  There was an offer of employment from a person who gave evidence to the court and also a surety.  Several certificates were tendered testifying to the applicant’s completion of self-improvement courses whilst in custody.  Drug screening tests of the applicant whilst on remand have been negative.  He has been medically assessed as suitable for drug rehabilitation if released on bail and would undertake it.  The applicant could be released on conditional bail to reside with his mother and father (who were present in court), on his father’s surety and on daily reporting conditions.  There had been a substantial delay in the preparation in the police brief of evidence and, even after that delay, the prosecution case was weak in several respects. 

1. In opposition of bail, it was submitted that the applicant had not shown cause and represented an unacceptable risk of re-offending and interfering with witnesses.  It was not suggested that he was a flight risk (despite previous offences for failing to appear).  The applicant had allegedly commenced reoffending soon after bail was granted in respect of the first group of charges.  On the strength of the prosecution case, it was conceded that the handguns allegedly used in the commission of offences have not been recovered.  Also, there were inconsistencies in the police statements and some witnesses were reluctant to assist.  However, the first committal hearing was only three weeks away and the magistrate would be in the best position to assess the strength of the prosecution case and whether bail should be granted.  The second committal was fixed for hearing not long after that. 

1. I do not accept the submissions made on behalf of the applicant.  The charges brought against him are very serious and the circumstances alleged involve crimes of violence against persons and property using firearms and standover tactics.  The applicant is a mature man and has an extensive criminal history.  He has served several terms of imprisonment.  Witnesses are fearful and reluctant to cooperate with police.  On the current evidence, the applicant has not shown cause why his detention is not justified and, on what is presently before the court, I think he is an unacceptable risk.  The conditions proposed do not satisfy me that he would not be an unacceptable risk.  With the committal process about to commence, it is not appropriate that I should go deeply into the strength of the prosecution case.  The committal magistrate will be in a better position to assess that.  The applicant should not be granted bail in advance of the committal.  The application is therefore dismissed.

Nicholas Kiourellis

1. Mr Kiourellis is aged 20 years and 7 months.  He has been on remand at the Moorabbin Magistrates’ Court and the Moorabbin Police Station since 19 December 2013.  This is his first experience of being in custody.  Bail was refused by a magistrate on 20 December 2013 because he had not shown cause and represented an unacceptable risk.

1. Among the applicant’s charges are trafficking a drug of dependence.  Under s 4(4)(ca), he must therefore show cause why his detention in custody is not justified.  The police oppose bail, essentially on grounds of unacceptable risk.

1. The applicant is charged with three counts of trafficking a drug of dependence between 24 October 2013 and 19 December 2013.  He is also charged with two counts of possessing a drug of dependence, dealing with property suspected of being the proceeds of crime and possessing a prohibited weapon (a taser) without an exemption or an approval.  The charges will be dealt with in the Magistrates’ Court.  Combined with the fact that the applicant does not turn 21 years until June 2014, this means that, if convicted, he would be eligible for a youth justice order.

1. The police informant swore an affidavit in opposition of bail.  It states that between 24 October 2013 and 5 December 2013 the applicant exchanged a large number of phone calls and SMS messages with a third party.  The majority of these related to drug deals and were monitored by a surveillance device under a warrant.  The police searched the applicant’s home on 19 December 2013.  The search yielded several bags and a number capsules of white powder alleged to be MDMA ecstasy, cash, electronic scales, a taser and a small quantity of cannabis.  Some of these items were hidden in an audio speaker.

1. Following the search, the applicant was arrested and interviewed.  He admitted to purchasing cannabis but denied the other offences. 

1. Bail is opposed on the ground that the applicant is at risk of further offending if granted bail.  It is not suggested that he is a flight risk or a danger to the community.

1. The applicant relied on his solicitor’s affidavit and on the evidence given by his sister, Vicky Kiourellis, at the hearing.  Ms Kiourellis stated that the family live in two units in Carnegie.  She lives in one of the units with her grandmother and the applicant lives in the other with their mother and sister.  The applicant has not seen his father since he was a very young child.  After the applicant lost his job in December 2012 she noticed a decline in his mental health.  Her concerns led her to take the applicant to the family’s general practitioner in July 2013.  The applicant was referred to a psychologist and prescribed anti-depressant medication.  He continued to worry his family with his involvement in drugs and has not yet acted on the psychological referral.  Ms Kiourellis’s fiancé has offered the applicant a job at his concreting company. 

1. The applicant does not have a criminal history.  These are the first criminal charges he has faced.

1. The applicant must show cause and again unacceptable risk is the central consideration. The issue is whether he would reoffend if granted bail.  He is a very young adult with no prior criminal history.  He comes from a supportive and loving family.  His offending is related to drug addiction and this appears to be related to untreated mental illness of unknown severity.  As the police submit, he is at risk of reoffending to support his drug dependence.  With support and appropriate conditions of bail, that risk can be acceptably managed.  He seems to be committed to his own rehabilitation.  He has very good family support.  At my request and with his consent, he is being assessed at a bail support service and (on my experience) is very likely to be admitted to an intensive bail program.  He is also seeing his general practitioner for a referral to a psychologist.  All of these circumstances together show why he is not an unacceptable risk and that cause has been shown why his continued detention is not justified.

1. Conditions of bail are called for to minimise the risk of reoffending.  Only modest reporting is required as the applicant is not a flight risk.  There should be a residential condition for the applicant to reside at the address of his family to minimise the risk of relapse and further offending.  There is no need for a surety or curfew.

1. The order of the court is that:

Nicholas Kiourellis is admitted to bail on his own undertaking on the following conditions:

1.He is to surrender himself into custody at the Moorabbin Justice Centre at 9:30 am on 16 January 2014 for mention and then will not depart without leave of the court and, if leave is given, will return at the time specified by the court and again surrender into custody.

2.He is to reside at 2/13 Margaret Street, Carnegie, VIC 3163.

3.He is to report to the officer in charge of the Caulfield Police Station or his/her nominee between the hours of 9:00 am and 9:00 pm, Monday and Friday.

4.He is to attend at the CISP at the Melbourne Magistrates Court at 9:30 am on 24 December 2013 for assessment and thereafter to comply with all lawful directions of Donna Filipich of CISP or her nominee.

5.He is not to contact directly or indirectly any witnesses for the prosecution or any co-accused including Dane Gutsell and Patrick Lloyd, except his mother and the informant or his nominee.

6.He is to make an appointment with Dr Diane Patrick and thereafter to follow up the referral for psychological treatment.

7.He is to surrender any valid passport or travel document to the informant within 24 hours.

8.He is not to attend any points of international departure.

Deng Mawn

1. Mr Mawn is aged 21 years and 7 months.  He has been on remand at the Melbourne Assessment Prison since 4 December 2013.  This is his first experience of being in custody.  Bail was refused by a magistrate on 11 December 2013 on the ground that the applicant represented an unacceptable risk.

1. The applicant left his home in South Sudan in 2002.  He spent time in a refugee camp in Egypt before coming to Australia as a refugee in 2005.  He lives with his mother, two brothers and five sisters in the family home.  The applicant also has the support of his father, although he does not live with the rest of the family.  The applicant has been diagnosed with post-traumatic stress disorder and struggles with alcohol abuse.  He also has limited formal education and speaks barely-functional English.

1. The applicant has a prima facie entitlement to bail.  One of the co-accused has already been granted bail.  The police oppose bail on grounds of unacceptable risk. 

1. The applicant has been charged with one count of robbery, two counts of intentionally causing injury, two counts of recklessly causing injury, three counts of assault, one count of assault with intent to rob and one count of stealing.  The prosecution intends to uplift the charges into the committal stream (ie, to have them tried non-summarily) but was unable to provide a firm indication of when a committal hearing may be. 

1. The charges arise out of two separate incidents occurring in Sunshine on 4 December 2013.  The applicant was severely affected by alcohol during both incidents.  The first occurred during the late afternoon outside the Brimbank Library in Sunshine.  The applicant and a co-accused approached the victim and allegedly demanded cigarettes from him.  The victim insisted that he did not smoke.  While the victim was not looking, the applicant punched him in the head.  The victim fell to the ground where the applicant stomped on his head.  The victim tried to get up but the applicant kicked him in the head a further three times, knocking him unconscious.  The co-accused attempted to kick the victim to the head but missed.  Whilst the victim was on the ground, the applicant rummaged through his pockets and removed a wallet and a mobile phone.  The applicant and co-accused then left the scene.  The incident was witnessed by an associate of the applicant and captured on CCTV, which I have viewed.  The victim was taken to Footscray Hospital for treatment.  He received swelling, body soreness and dizziness as a result of being knocked unconscious. 

1. A short time after the first incident police were patrolling the area looking for the applicant.  They observed the applicant and two co-accused punching a man to the head outside 240 Hampshire Road, Sunshine.  They had allegedly asked the victim for cigarettes and money.  The applicant then ‘patted’ the victim’s rear trouser pocket, looking for the victim’s wallet.  When the victim pushed the applicant’s hands away, the applicant punched him in the head and kicked him in the stomach.  The victim was then struck on the head by one of the co-accused.  The police informant witnessed the incident and arrested the applicant at the scene.  The incident was also captured on CCTV.  The victim was taken to Footscray Hospital for treatment.  He required stitches to his forehead and treatment for general soreness.

1. After his arrest, the applicant was taken to the Sunshine Police Station.  He was deemed unfit for interview due to intoxication. 

1. At the time of his alleged offending the applicant was, and still is, subject to a 18-month community corrections order.  That order was imposed by a magistrate in May 2013 after the applicant was found guilty of charges similar to those he is facing now.  Among other things, the order requires the applicant to undergo treatment for alcohol abuse and perform unpaid community work.  The affidavit of the police informant in opposition to bail states that the applicant was found guilty of breaching his community corrections order on 5 August 2013.  It is not clear how the applicant breached the order.  The applicant’s youth worker, Liam Barwick, said it had something to do with lack of attendance.

1. As part of his community corrections order, the applicant has been attending the Youth Support and Advocacy Service at the Visy Care Hub in Sunshine.  He has been receiving drug and alcohol as well as psychological counselling through YSAS.  His YSAS youth worker, Mr Barwick, gave impressive evidence in support of Mr Mawn being granted bail.  He has been working with the applicant for the past nine months.  The applicant has completed a number of detoxification and community engagement programs.  He is also prescribed Naltrexone for his alcohol dependency, although he has stopped taking it since being in custody.  Naltrexone causes a person to be sick if they drink alcohol.  The applicant has shown a high degree of engagement with the YSAS services and acknowledges his problems.  He is highly regarded by both YSAS and his peers.  Mr Barwick sees the applicant as a role model in terms of South Sudanese youth engagement with health services. 

1. In relation to the incidents which occurred on 4 December 2013, Mr Barwick gave evidence that he had spoken with the applicant’s psychologist and understood that the applicant had reached a point in his therapy where some serious issues surrounding his PTSD were being explored.  The applicant uses alcohol to self-medicate.  The applicant’s regular engagement with community services may have been disrupted by the Melbourne Cup public holiday and associated staffing changes.

1. The issue is whether the police have shown that the applicant represents an unacceptable risk.  It is not suggested that he is a flight risk but that he might commit further violent offences while on bail.  I think that risk can be mitigated to an acceptable degree by conditions.  The applicant’s offending is related to his refugee background, social circumstances and alcohol dependence.  As a young refugee with very limited education and English language skills, he is highly vulnerable.  On the evidence, he is confronting the challenges of his past and immigration to Australia.  I agree with Mr Barwick that he has the capacity to play a positive leadership role in his community.  The applicant may have refugee-related PTSD, which may be behind his alcohol dependence.  His is strongly engaged with YSAS and the youth worker spoke highly of him.  His mother and brother were in court to support him.  He has a good home to go to and is committed to his rehabilitation.  The YSAS support amounts to an intensive bail support program and the applicant consents to participation.

1. Due the severity and nature of the offending and the risk of him reoffending, there must be conditions (to which he consents), including conditions relating to treatment for alcohol abuse.  On his own admission and the other evidence, he is at highly increased risk of offending and becoming violent when he drinks alcohol.  The offending is directly related to that cause.  I think the applicant is capable of observing a no-alcohol-consumption condition and is genuinely committed to doing so.  Such a condition should be imposed to mitigate the risk of re-offending.  As a further control, he should submit to a preliminary breath test when required by the police.  Protection of the community is a strong consideration here.  Hopefully these conditions will also assist in his rehabilitation.  I was informed that he could and would conveniently report daily to the police as the local station is near YSAS which he already attends daily.  That condition can be liberalised if it interferes too much with the applicant’s daily life and, given progress, becomes unnecessary.

1. The police sought a condition excluding the applicant from the Sunshine shopping precinct for the protection of the community.  I think this would impose greater constraints upon his freedom of movement that the circumstances require.  It would prevent him from going to an important place of contact between people generally, and young people particularly, in the local area.  Having regard to the conditions of bail, I think he is not likely to engage in street crime in the precinct.  I will impose a condition excluding him from the Brimbank Library, which is a relatively confined area and the scene of one episode of his alleged violent offending.

1. The order of the court is:

Deng Mawn is admitted to bail on his own undertaking on the following conditions:

1.He is to surrender himself into custody at the Sunshine Magistrates Court at 10:00 am on 13 January 2014 for mention and then will not depart without leave of the court and, if leave is given, will return at the time specified by the court and again surrender into custody.

2.He is to reside at 68 Chester Court, Deer Park VIC 3023.

3.He is to report to the officer in charge of the Sunshine Police Station or his/her nominee between the hours of 9:00 am and 9:00 pm, daily.

4.He is to obey the lawful directions of [YSAS].

5.He is to comply with all lawful directions of his treating doctor, including taking all prescribed medications as directed.

6.He is not to drink alcohol.

7.He is to submit to a preliminary breath test when requested by police. 

8.He is not to contact directly or indirectly any witnesses for the prosecution, except for the informant.

9.He is not to contact directly or indirectly any co-accused, including Peter Chol and Sedpock Irakoze.

10.       He is not to attend at the Brimbank Library.

CONCLUSION

1. In each of the four cases before the court it has been necessary to give careful attention to possible conditions of bail when determining whether bail should be granted.  In one case, bail has been refused because no conditions of bail could overcome the unacceptable risk which the applicant poses on the material before the court.  In the other three cases, bail has been granted on conditions to ensure the appearance of the applicant at trial and to protect the community.  As required by amendments to the Bail Act, the conditions have been formulated to meet the individual circumstances of the case after taking the human rights of the applicants into account.

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