Part 2 - Granting of bail and admission to bail - UR Test Flashcards
4D - Step 2—unacceptable risk test (step 1 after EC/SCR; P bears burden, as 4E)
(1) A BDM must apply the unacceptable risk test if—
(a) at step 1 (section 4A) the BDM is satisfied that exceptional circumstances exist that justify the grant of bail for a person; or
(b) at step 1 (section 4C) the BDM is satisfied that a compelling reason exists that justifies the grant of bail for a person.
(2) For the application of the unacceptable risk test, the prosecutor bears the burden of satisfying the bail decision maker—
(a) as to the existence of a risk of a kind mentioned in section 4E(1)(a); and
(b) that the risk is an unacceptable risk.
(3) On applying the unacceptable risk test, the bail decision maker must refuse bail if required to do so by section 4E.
4E - All offences—unacceptable risk test (risk would endanger safety/welfare; commit offence; interfere with witness or obstruct justice; fail to surrender; AND risk is unacceptable) - burden on P - BDM must consider surrounding circs and available bail conditions
(1) BDM must refuse bail for person accused of any offence if the BDM is satisfied that—
(a) there is a risk that the accused would, if released on bail:
● (i) Endanger the safety or welfare of any person
● (ii) Commit an offence while on bail
● (iii) Interfere with a witness or otherwise obstruct the course of justice in any matter
● (iv) Fail to surrender into custody in accordance with bail conditions; and
(b) the risk is an unacceptable risk. (eg, an unacceptable risk that the accused, if released on bail, would commit a family violence offence).
(2) The prosecutor bears the burden of satisfying the BDM:
● (a) As to the fact that a risk exists of the kind mentioned in (1)(a); and
● (b) And that it is an unacceptable risk.
(3) In considering whether the (1)(a) risk is unacceptable risk, the BDM must:
● (a) take into account the surrounding circumstances; and
● (b) Consider whether there are any bail conditions that might mitigate risk so as to render the risk acceptable
Hall v Pangemann - [2018] VSC 533 (consider the nature of offence risked to be committed)
○ UR does not mean any risk of re-offending [37]: Seventh – and this is a matter which goes also to the question of unacceptable risk of offending whilst on bail – while the likelihood of committing public drunkenness offences on bail is conceded to be high, the court must consider, amongst other things, the magnitude of the harm that may result were he to reoffend. In Ms Lenthall’s submission, the risk of that type of offending is not serious enough to warrant his continued detention in custody. I agree. The notion of unacceptable risk as it applies to bail does not concern merely any risk of reoffending. Rather, it is a question of whether such risk as there might be is unacceptable. The law recognises situations in which a comparatively low level of risk of some very serious crime might amount to the relevant level of unacceptable risk to require a refusal of bail. But, equally, a high risk of the occurrence of something comparatively minor might not amount to an unacceptable risk, because it is a risk that the community will tolerate. In Mr Hall’s case, that type of risk has been tolerated a long time, with great inconvenience to the police no doubt, but nevertheless it is something which has to be tolerated, because the alternative is not acceptable. The alternative is that a man like him remains in custody for days, weeks, or months on end, for something which does not even warrant gaol in the first place. Common sense says that we cannot keep locking people up in those circumstances
Re Dib [2019] VSC 11
Even if longer remand than sentence, still have to get over the unacceptable risk hurdle [57]-[59]
Re Moore [2019] VSC 344
[39] Recognising that the exceptional circumstances test is a stringent one, I am of the view that the applicant has satisfied the burden of showing that exceptional circumstances exist that justify the grant of bail. In my opinion, the fact that the applicant is a child; Aboriginal; and influenced by cognitive deficits which make him vulnerable in custody; coupled with the availability of a structured environment in which he will be taught to develop alternative behaviours and coping strategies based on therapeutic community principles and Aboriginal cultural practices, combine to satisfy the exceptional circumstances test. [40] I consider UR can be rendered acceptable by the imposition of conditions
DPP v Walker [2020] VCC 447 (Risk of FV during pandemic is increased -proposal that applicant return to live with complainant is wholly unacceptable)
Risk of FV during pandemic is increased [48] Given that history, the proposal that the applicant return to the complainant and live with her is, in my view, wholly unacceptable. Despite Ms Maguire’s evidence that she is not fearful of the applicant, I am not satisfied that there is an acceptable risk of a further incident of the kind alleged here occurring again. On the contrary, I am satisfied there would be a very real risk of a further recurrence.
Re SS (Current offending being low level is not determinative)
[60] Current offending being low level is not determinative
Other points of principle
● Revocation of bail should be done with reference to guiding principles
● Failure to provide reasons re-opens the bail discretion
● Re Politis [2019] VSC 780: sentencing principles of community protection [42], rehabilitation [38]-[41] and parity [22] (where other things are equal, applicants for bail should receive the same decision; where other things are not equal, the bail applications may be dealt with differently) are relevant in determining a bail application re: exceptional circumstances, unacceptable risk
● Re Bertucci [2020] VSC 88: withdrawn allegations of FV are still relevant [58]-[59]
● DPP (Cth) v Lee [2020] VSC 275: start with nature and seriousness of the offending and the strength of t would justify a grant of bail have been established.
COVID FACTORS TO CONSIDER
Delay; No visits; Programs; Any particular vulnerabilities
Aboriginal people - loss of connection to culture exacerbated?
S5 Bail undertaking (undertaking to surrender into custody at particular time, BDM may release accused on own undertaking with/out conditions; or with surety with/out conditions; surety undertakes to pay on non-compliance)
● (1) A grant of bail must require the accused to enter written undertaking to surrender into custody at time and place specified in undertaking and not to depart without leave of court and, if leave is given, to return at time specified by the court and again surrender into custody. (1A) A who enters undertaking is under duty to attend court for hearing/trial specified in undertaking and surrender into custody on so attending
● (2) BDM on granting bail may release accused:
○ (a) On their own undertaking without any other condition; or
○ (b) On their own undertaking with conduct conditions; or
○ (c) With surety/sureties for specified amount or money deposit of specified amount, with or without conduct conditions
● (3) any surety that is required must undertake to pay specified amount on non compliance by the A.
s5AAAA — Family violence risks (consider FVIO/FSVN/DVO, FV risk, conditions that can mitigate)
● (1) BDM considering the release of A on bail must make enquiries of prosecutor as to whether there’s in force against A: (a) FVIO; (b) FVSN; (c) recognised DVO
● (2) BDM considering the release of A on bail charged with FV offence, must consider (a) whether if A were released on bail, there’d be a risk the A would commit FV: and (b) whether risk could be mitigated by (i) conditions (ii) making of FVIO.
5AAA Conduct conditions - Preliminary (any condition to reduce likelihood A may endanger safety/welfare of any person; commit offence on bail; interfere with a witness/course of justice; fail to surrender into custody) - must be reasonable, no more onerous
● (1) BDM considering release of A on bail must impose any condition that, in opinion of BDM, will reduce likelihood that the A may ((a) endanger safety/welfare of any person; (b) commit offence while on bail; (c) interfere with a witness or otherwise obstruct course of justice in any matter; (d) fail to surrender into custody in accordance with bail conditions
● (2) If BDM imposes 1+ conditions, each condition and number of conditions
● (a) Must be no more onerous than is required to reduce (1)(a)-(d) likelihood
● (b) Must be reasonable, having regard to nature of the alleged offence and circumstances of the A;
● (c) Subject to (3), Must be consistent with each condition of each FVIO, FVSN, or recognised DVO to which the A is subject.
(3) BDM may impose condition inconsistent with condition of FVIO, FVSN, recognised DVO if satisfied that proposed condition will better protect safety /welfare of (a) alleged victim of offence with which A charged; or (b) a protected person (within meaning of FVPA).
5AAA Conduct conditions - Available conditions for bail (reporting to station; residing at place; curfew (max 12 hours in 24 hour period); A non-contact; passport surrender; geo exclusion zones; BSS; not drive; not consume alcohol/drugs; comply with existing IOs)
(4) Without limiting 4(5) or 5(2), BDM may impose all/any of the following conditions about the conduct of an accused, which (6) are binding until condition varied or revoked or relevant matter finally determined by a court:
● (a) reporting to a police station;
● (b) residing at a particular address;
● (c) a curfew imposing times at which the A must be at their place of residence, (5) such curfew condition must not exceed 12 hours within a 24-hour period;
● (d) that A is not to contact specified persons/classes of person (eg, witness(es), alleged victim(s), Co-A(s))
● (e) surrender of the accused’s passport;
● (f) geographical exclusion zones, i.e., places/areas the A must not visit or may only visit at specified times (eg, Not attending a gaming venue, venue selling alcohol or point of international departure)
● (g) attendance and participation in a bail support service;
● (h) that the accused not drive motor vehicle or carry passengers when driving motor vehicle;
● (i) that the accused not consume alcohol or use a drug of dependence within the meaning of the Drugs/Poisons/Controlled Substances Act without lawful authorisation under that Act;
● (j) that the accused comply with any existing intervention orders;
● (k) any other condition that BDM considers appropriate to impose in relation to conduct of A.
5AAB Sureties (consider means of accused/surety; then other means of reducing risk)
(1) If proposed bail condition includes deposit of money per 5(2)(c), BDM must have regard to means of accused in determining (a) whether to impose and (b) how much.
(2) And if BDM satisfied that A doesn’t have suff. means to satisfy deposit of money condition, BDM must consider other means of reducing risk of s 5AAA(1)(a)-(d).
(3) If BDM considering imposing surety condition for specified amount, must regard to means of proposed surety in determining (a) whether to impose and (b) how much.
(4) And if BDM satisfied that A unable to provide surety with suff. means, BDM must consider other means of reducing risk of s 5AAA(1)(a)-(d).
5AA Conditions of bail granted to a child in certain circumstances
(1) applies if child A granted bail by BJ/PO/sheriff/person under s 115(5) of Fines Reform Act
(2) court at first hearing following bail grant at which child is present, must ensure that the conditions of bail imposed by BJ/PO/sheriff/115(5) comply with 5AAA(2)
(3) Court can make any necessary variations for (2).
