Bail – The new Everest of criminal law

Bail – The new Everest of criminal law

Written by Tyson Manicolo, Lawyer, Doogue + George Defence Lawyers.

Earlier this year, the Victorian government introduced amendments to the Bail Act 1977 (‘the Act’), following the tragic Bourke street incident in January 2017. These amendments have made it more difficult for people who have been arrested to satisfy a Magistrate that the person ought to be released on bail pending the finalisation of their criminal matters as well as giving Police broader powers to remand people.

The effect of these sweeping changes is significant, creating a situation where we see our clients spending unnecessary time on remand or pleading guilty to charges which may not be supported by evidence.

To give context to the points I will outline below, I will further explain the recent amendments to the Act. The Act was amended to categorise offences as a “schedule 1 offence” or a “schedule 2 offence”. Schedule 1 offences are serious indictable offences such as murder, treason, aggravated home invasion and serious drug offences. Schedule 2 offences are, broadly speaking, less serious indictable offences such as assaults, thefts and less serious drug offences.

A person charged with a schedule 1 offence must satisfy the Magistrate that ‘exceptional circumstances’ exist as to why their remand in custody is not warranted; this is a very high threshold rarely achieved.

A person charged with a schedule 2 offence must satisfy the Magistrate that ‘compelling reasons’ exist which does not justify their detention in custody. This replaced the previous ‘show cause’ standard. In his Second Reading Speech for the Bill which introduced these changes, the Attorney-General said:

The Bill changes the current wording of ‘show cause’ to ‘show compelling reason’. A change in the wording of the show cause test makes it absolutely clear that persons who face this test are to be refused bail unless they show compelling reasons why it should be granted.

The Supreme Court of Victoria in the matter of an Application for Bail by Ceylon [2018] VSC 361 explained that ‘show compelling’ is a ‘slightly more rigorous test to be applied’. Since the changes, I have experienced that Magistrates will be satisfied that compelling reasons exist if the applicant is someone’s primary carer, has a bed available at a residential rehabilitation clinic or requires medical treatment for a serious illness..

‘Exceptional circumstances’ has been defined in the past as a combination of these (and other similar) factors.

The line between ‘exceptional circumstances’ and ‘show compelling reasons’ begin to blur when a person commits an offence whilst on bail for other offences. For example, a person charged with a schedule 2 offence while already on bail for a schedule 2 offence will be automatically elevated to the higher ‘exceptional circumstances’ category. Similarly, a person who commits a bail offence (such as failing to appear at Court) while on bail for another bail offence (such as failing to appear at Court on the previous occasion) will also have to show ‘exceptional circumstances’. The same applies to a person who is charged with an offence while serving a Community Correction Order for previous offending.

Theoretically, this amendment is palatable when you think about a person charged with armed robbery while already on bail for another armed heist. However, consider for one moment a scenario where a person is in exceptional circumstances (and will most likely be remanded) because he or she was charged with stealing a bottle of alcohol from a supermarket while already on bail for the same offence. Does this person deserve to be remanded? Is it logical that a person charged with a shop theft or an assault while on bail for another offence must overcome the same burden at their bail hearing as a person charged with murder?

This is, unfortunately, a reality facing many people charged with relatively minor offences such as shop thefts or assault while on bail for other minor offences; who in the past would have been bailed from the Police station and not have troubled the Courts. This leaves people with two unpleasant options:

  1. Sit on remand and contest the charges; or
  2. Plead guilty even if you know you are not guilty so that you can be released sooner with a community order.

This presents our clients with a very dim predicament, which flies in the face of longstanding principles established to protect the rights of an accused person against the might of the Police and Prosecution. Further, it will create overcrowding in prisons across Victoria. Worse, it will detract people from electing to contest offences, compelling them to simply capitulate and plead guilty to unfounded charges.

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