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:
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Woods v DPP [2014] VSC 1
Case
[2014] VSC 1
Decision Date
CaseChat Overview and Summary
Woods v DPP concerned the bail application of a child accused of criminal activity, with the Director of Public Prosecutions (DPP) opposing bail on the grounds of unacceptable risk to the community. The case was heard in the Supreme Court of Victoria. The central legal issues the court needed to address were the criteria for determining whether applicants represent an unacceptable risk to the community, the standard of proof in show-cause situations, and the compatibility of bail conditions with the human rights of the applicants, particularly the presumption of innocence and the right to liberty.
The court examined the relevant statutory provisions, including the Bail Act 1977 (Vic) and the Bail Amendment Acts 2010 and 2013 (Vic), as well as the Charter of Human Rights and Responsibilities Act 2006 (Vic). It considered whether the onus of proof rested on the applicants to show why detention was not justified when the DPP opposed bail. The court also assessed the imposition of bail conditions in a manner compatible with the applicants' human rights. The reasoning focused on interpreting the concepts of 'unacceptable risk', 'exceptional circumstances', and 'show cause' within the legislative framework. The court concluded that the onus of proof was on the DPP to demonstrate that the risk posed by the applicants warranted continued detention, and it stressed the importance of balancing the applicants' rights with community safety.
The Supreme Court of Victoria ultimately decided that the bail application should be granted, with conditions imposed to mitigate the perceived risk. The decision emphasised the importance of adhering to the principles of the presumption of innocence and the right to liberty, ensuring that any restrictions on these rights were justified and proportionate. The court provided detailed guidelines on how future applications should be handled, ensuring that human rights considerations were central to the decision-making process.