Bail conditions in Victoria must comply with human rights

Woods v DPP [2014] VSC 1 (17 January 2014)

Summary

The Supreme Court of Victoria has made its first decision on the 2013 amendments to the Bail Act 1977 (Vic) regarding conditions of bail. The Court held that it is necessary to pay careful attention to proposed bail conditions when determining whether bail should be granted and that conditions must be formulated to meet the individual circumstances of the case taking into account the applicant’s human rights.

Facts

Woods v DPP involved four applications for bail made before Justice Bell of the Supreme Court of Victoria.

Under section 4(1) of the Bail Act and at common law, accused persons being held in custody have, as a general rule, a presumptive entitlement to bail. Where this presumptive entitlement applies, bail can only be refused where the prosecution establishes that there is an “unacceptable risk” that, if bail were to be granted, the accused would fail to appear, commit an offence, endanger someone’s safety or welfare or obstruct the course of justice (section 4(2)(d)(i)).

One situation in which the presumptive entitlement is displaced is where the applicant is required (under section 4(4)) to “show cause” why their detention in custody is not justified. This applies to applicants who allegedly commit indictable offences while awaiting trial for an indictable offence or who are being charged with specified offences (such as aggravated burglary or certain drug offences). The presumptive entitlement is also displaced in “exceptional circumstances” specified in section 4(2)(a)–(aa) (which includes where a person is charged with murder or serious drug offences); however, none of the applicants before Justice Bell were charged with these kinds of offences.

Of the four cases before Justice Bell, one applicant had a prima facie entitlement to bail, which the police opposed on the grounds of “unacceptable risk”, and the other three applicants had committed offences that required them to “show cause” that their detention was not justified.

Decision

Bail and human rights

Justice Bell began by considering the relationship between bail and human rights. His Honour held that “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.” It does not matter whether a person has a presumptive entitlement to bail or whether that entitlement is displaced.

In particular, Justice Bell drew attention to the rights of freedom of movement in section 12 and of liberty and security of the person in section 21 of the Victorian Charter, noting that 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”. Other Charter rights that Justice Bell considered could be engaged by bail decision-making were sections 10(c) (medical treatment), 13(a) (privacy, family home or correspondence), 16(1)–(2) (peaceful assembly and association), 19(2) (distinct culture of Aboriginal persons) and 25(1) (presumption of innocence).

However, under section 7(2) of the Victorian Charter, the human rights recognised by the Charter are not absolute and may be subject to limits prescribed by law that are reasonable and demonstrably justified in a free and democratic society. In light of this, Justice Bell noted that the Charter does 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.”

Entitlement to bail – The correct approach for “show cause” cases

Justice Bell then considered the tests for entitlement to bail, including the test for the “show cause” cases. Supreme Court judges have taken two different approaches to “show cause” situations and the Court of Appeal has not yet determined which of the views is correct. The first of these approaches is set out in the decision of Asmar [2005] VSC 487, which has been frequently followed by judges of the trial division of the Supreme Court. In that case, President Maxwell held that where the applicant for bail is required by section 4(4)(a)–(d) to show cause, there is only one step in the process – “whether the applicant has satisfied the Court that his/her detention in custody is not justified”. According to President Maxwell, issues of unacceptable risk would be at the “heart” or “forefront” of that consideration.

The second approach is the decision of Justice Gillard in Director of Public Prosecutions v Harika. This approach involves two steps: a bail applicant to whom section 4(4)(a)–(d) applies must first discharge the onus of showing cause why detention is not justified, then the prosecution must establish “unacceptable risk” under section 4(2)(d)(i).

Having considered these approaches, Justice Bell chose to follow the approach of Justice Gillard in Harika, noting that a “troubling feature” of President Maxwell’s interpretation in Asmar is that it reverses the onus of proof for the unacceptable risk test in show cause situations, transferring that onus from the prosecution to the applicant because in order to satisfy the court that their detention is not justified, the applicant must essentially prove they do not pose an “unacceptable risk”. Justice Bell believed that this was not consistent with the presumption of innocence and the prosecutorial onus of proof.

Conditions of bail

Justice Bell then turned his attention to the conditions of bail and in doing so considered the amendments to the Bail Act 1977 (Vic) made by the Bail Amendment Act 2013 (Vic).

The new section 5(2A) of the Bail Act sets out inclusively the “conduct conditions” that may be imposed, such as reporting to a police station, residing at a particular address, being subject to a curfew, and attendance and participation in a bail support service (which includes medical treatment, and counselling services or treatment services for behaviour which may lead to commission of offences). Justice Bell noted that although the bail conditions listed in section 5(2A) were common, they did not previously have legislative support.

Nonetheless, the new extensive and explicit powers under section 5(2A) to impose bail conduct conditions on the accused are subject to certain restrictions regarding the purposes for which conditions may be imposed and the content and number of conditions. Justice Bell held that 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”. Therefore any conditions “must be proportionate in the circumstances of the case” and should impose no greater limitation upon the liberty and human rights of the accused than necessary.

Justice Bell also considered the right of freedom from medical treatment without full, free and informed consent (in section 10(c) of the Charter) in light of the Court’s ability to impose a bail condition requiring participation in a bail support service. His Honour held that while the Act may contemplate the imposition of compulsory treatment conditions on non-consenting accused persons, he “would exercise great caution” before doing so under section 5(2A). In the cases before him, the three relevant accused gave full, free and informed consent and, in line with the right under 10(c) of the Charter, Justice Bell “would not have imposed the conditions unless they had done so.” Furthermore, although the new section 30A makes it an offence for an accused on bail to contravene a conduct condition without reasonable excuse, Justice Bell noted that, because this provision provides an exemption for contravening a bail support service condition, it is consistent with section 10(c) of the Charter.

In three of the four cases before the Court, Justice Bell formulated bail conditions to meet the individual circumstances of the case after taking the human rights of the applicants into account. In the remaining case, bail was refused because no conditions of bail could overcome the unacceptable risk which the applicant posed on the material before the Court.

Commentary

This decision provides a useful analysis of the role that human rights play in making decisions about bail. It is also the first decision to consider the 2013 amendments to the Bail Act and the first decision to consider how bail conditions should be imposed so that they do not unreasonably interfere with an accused’s human rights under the Victorian Charter.

The interaction between the Charter and the Bail Act has previously received some brief consideration by the Supreme Court, but this has mainly been in relation to delay of the accused’s trial. In Gray v DPP [2008], Justice Bongiorno suggested that where the prosecution cannot provide a trial in accordance with an accused person’s Charter rights to be tried without unreasonable delay, those rights must be relevant to the question of bail. However, in Barbaro v DPP [2009] the Court of Appeal accepted the submissions on behalf of the Attorney-General “that the Charter did not require any departure from the existing approach to the treatment of delay as an issue in bail applications”. Barbaro did, however, confirm that the Charter was applicable to an application for bail in respect of Commonwealth offences.

This decision is available online at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2014/1.html

Miranda Webster is a volunteer at the Human Rights Law Centre.