9. CRIMINAL DIVISION - CUSTODY & BAIL
9.1Child in custody
9.1.1Prescribed regions for 2 day bail justice remand
9.1.2Placement of remanded child
9.1.3Breach of Children’s Court sentencing order
9.2Bail - Legislation
9.2.1Differences between child & adult
9.2.2Additional considerations in bail determinations for children
9.2.3Prima facie entitlement to bail & exceptions thereto
9.3Bail -History, Questions, FactorsPrinciples
9.4Bail - 'Exceptional circumstances', 'Show cause', 'Unacceptable risk'
9.4.1Exceptional circumstances
9.4.2Relationship of Exceptional circumstances/Show cause & Unacceptable risk
9.4.3Exceptional circumstances - Bail unopposed by informant not conclusive factor
9.4.4Show cause / Unacceptable risk
9.4.5Whether or not conditions of bail an element of showing cause
9.4.6Refusal of bail where person seriously injured
9.4.7Bail pending pre-sentence or other report
9.4.8Bail pending appeal against conviction or sentence
9.4.9Relevance of the standard of medical care in custodial facility
9.4.10Relevance of the Charter of Human Rights and Responsibilities Act 2006
9.4.11Relevance of Aboriginality
9.4.12Relevance of youth
9.5Bail - A Miscellany
9.5.1Whether the principle of "parity" applies to bail applications
9.5.2Evidence in bail applications
9.5.3Bail conditions
9.5.4Extension of bail
9.5.5Reasons and sufficiency thereof
9.5.6Further application for bail– Newfacts or circumstances
9.5.7Application to vary bail
9.5.8Application to revoke bail
9.5.9Appeal by DPP to Supreme Court
9.5.10No power for surety to apprehend principal – Discharge of surety
9.5.11Arrest of person released on bail
9.5.12Breach of bail
9.5.13No concept of being ‘owed bail’
9.5.14Bail applications by children compared with adults
9.5.15Limited bail support programs in Children’s Court
9.6Law Reform Commission Review of the Bail Act
Some of the material in sections 9.3 & 9.4 is taken, with her kind permission, from a private research paper entitled "A Digest of Bail Cases", prepared by Deputy Chief Magistrate Jelena Popovic. The paper is not available to the public. The cases in this Digest mostly relate to adults but the principles are alsobroadly applicable to children. However, apart from a few cases in which issues of principle are discussed, most of the cases turn on their facts and are of limited use as precedent.
9.1Child in custody
The following table lists those provisions of the Children, Youth and Families Act 2005 (Vic) [No.96/2005] [as amended] ('the CYFA') and the Bail Act 1977 [No.9008] [as amended] (‘theBA’) which set out the duties & powers of the arresting police officer, acourt and a bail justice in relation to a child who is in custody.
SECTION / ACTION WHERE ACCUSED CHILD IS IN CUSTODYCYFA/
s.346(2)
BY
ARRESTING
POLICE
OFFICER / If a child is arrested and taken into custody by a police officer, the child must be:
(a)released unconditionally [with or without being charged]; or
(b)released on bail by a sergeant of police or officer in charge of a police station pursuant to s.10 of the BA; or
(c)brought before the Court; or
(d)if the Court is not sitting at any convenient venue, brought before a bail justice-within a reasonable time of being taken into custody but not later than 24 hours after being taken into custody.
BA/s.12(1AA)
BY
A COURT / If a court refuses bail to a child, the court must not remand the child in custody for a period longer than 21 clear days.
BA/s.12(1A)
BY
A BAIL
JUSTICE / If a bail justice refuses bail to a child, the bail justice must remand the child in custody to appear before a court-
(a)on the next working day; or
(b)if the proper venue of the Children’s Court is in a region of the State prescribed under the CYFA, within 2 working days.
BA/s.12(1AB)
FURTHER
REMAND
BY COURT / When a child in custody is brought before acourt on the expiry of a period of remand in custody, the court must not remand the child in custody for a further period longer than 21 clear days. It is clear from Hansard that this power is not restricted to one further remand but applies to any number of further remands.
9.1.1Prescribed regions for 2 day bail justice remand
Regulation 19(1) & Schedule 3 of the Children, Youth and Families Regulations 2007 [S.R. No.21/2007] lists 48 councils, covering the whole of rural regional Victoria,whose municipal districts are prescribed regions for the purposes of 2 day bail justice remands under s.12(1A)(b) of the BA.
9.1.2Placement of remanded child
If a child is remanded in custody by a court or a bail justice, s.347(1) of the CYFAand reg.19 & Sch.3 of the Children, Youth and Families Regulations 2007 provide that the child must be placed:
(i) / in a remand centre; or / There are 3 remand centres established under ss.3 & 478(a) of the CYFA. All 3 are at Parkville, a suburb of Melbourne:Melbourne Juvenile Justice Centre - Boys aged 15-17
Parkville Youth Residential Unit - Boys aged 10-14
Parkville Youth Residential Unit - Girls aged 10-17
(ii) / in a prescribed region of the State, in a police gaol or other suitable place if the period of remand is not more than 2 working days. / Regulation 19(1) & Schedule 3 of the Children, Youth and Families Regulations 2007 [S.R. No.21/2007] lists 48 councils, covering the whole of rural and regional Victoria, whose municipal districts are prescribed regions for the purposes of s.347(1) of the CYFA. Special rules governing the detention of children in police gaols are set out in s.347(2) of the CYFA. Section 347(3) provides that it is the responsibility of the Chief Commissioner of Police to make sure that s.347(2) is complied with.
9.1.3Breach of Children’s Court sentencing order
Section 420 of the CYFA provides, in effect, that a person who:
has been arrested in accordance with a warrant issued; or
has appeared before the Court in answer to a notice to appear served-
in respect of an alleged breach of a Children’s Court sentencing order may be remanded or bailed and the BA applies, subject to s.346 of the CYFA, as if the person was an accused person. The use of the word “person” makes it clear that s.420 applies to a person alleged to have breached a Children’s Court sentencing order, whether or not the person is still a child within the meaning of the definition of “child” in s.3(1) of the CYFA. This is consistent with the procedures set out in the respective breach provisions in ss.366, 371, 384, 392 & 408 of the CYFA.
Because s.420 is expressed to be subject to s.346 and the BA, the 21 day maximum remand period referred to in s.420(2) only applies to remand by the Court. The maximum period of remand by a bail justice is until the next working day or, if the proper venue is in a prescribed region of the State, not later than the second working day: see s.12(1A) of the BA; see also LD v Victoria Police [Supreme Court of Victoria, unreported, December 1996] per Hampel J.
9.2Bail - Legislation
9.2.1Differences between child & adult
Section 346(6) of the CYFA provides that, to the extent that it is not inconsistent with s.346, the Bail Act 1977 (Vic) (‘the BA’) applies to an application for bail by a child. Most of the former provisions of s.346 have been transferred into the BA by the Bail Amendment Act 2016 (Vic). However, the amending Act does create some additional significant differences between adults and children.
The specific legal differences are summarised as follows:
SECTION / DIFFERENCES – PROVISIONS APPLY TO CHILDREN ONLYBA/s.12(1A)
& s.12(1AA) / Maximum remand periods (detailed above) are different for a child.
BA/s.10(1B)
& s.10(1C) / If a member of the police force inquires into a case under s.10 of the BA or the sheriff or a person authorised under s.84(5) of the Infringements Act 2006 inquires into a case under s.10(1A) of the BA, the person so inquiring must ensure that, in the case of a child in custody, a parent or guardian of the child or an independent person is present during the inquiry. Such independent person may take steps to facilitate the granting of bail, for example by arranging accommodation.
BA/s.12(1AB) / The maximum further remand period for a child re-remanded by the Court is 21 clear days.
BA/s.12(3)
& s.12(4) / A bail justice who is considering an application for bail in respect of a child must ensure that a parent or guardian of the child or an independent person is present during the application. Such independent person may take steps to facilitate the granting of bail, for example by arranging accommodation.
BA/s.3B(3) / Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
BA/s.16B / If, in the opinion of a court or bail justice granting bail to a child or a police officer discharging achild on bail under BA/s.10, the child does not have the capacity or understanding to enter into an undertaking of bail, the child may be released on bail if the child's parent or some other person enters into an undertaking...to produce the child at the venue of the court to which the hearing of the charge is adjourned or the court to which the child is committed for trial.
BA/s.24(3A) / Despite s.24(3) of the BA, the maximum period for which a court may remand a child arrested under s.24(1) in relation to a breach or likely breach of bail is 21clear days.
BA/s.30A(3) / It is no longer an offence for a child to contravene a conduct condition of bail.
BA/s.3B(1) / Additional considerations which a court must take into account in making a determination under the BA in relation to a child [for details see section 9.2.2 below].
BA/s.3B(2) / In making a determination under the BA in relation to a child, a court may take into account any recommendation or information contained in a report provided by a bail support service.
BA/s.5AA(2) / The Court must ensure that conditions of bail for a child set by a police officer, a bail justice, the sheriff or a person authorised under s.84(5) of the Infringements Act 2006 comply with the requirements of BA/s,5(4) [i.e. must be no more onerous than required to achieve the purposes of BA/s.5(3) re attendance, not reoffending, not endangering public safety or welfare and not interfering with witnesses or otherwise obstructing the course of justice].
BA/s.5(3) / The Court may make any variations to the conditions of bail necessary for the purposes of BA/s.5AA(2).
SECTION / DIFFERENCES – PROVISION APPLIES TO ADULTS ONLY
BA/s.4(4)(ab) / A person charged with a “serious offence” [defined in BA/s.3] who, as an adult, has within the preceding 5 years been convicted or found guilty of an offence under BA/s.30(1) [failing to answer bail] must be refused bail unless the person shows cause why detention in custody is not justified.
9.2.2Additional considerations in bail determinations for children
Section 3B(1) of the BA – introduced by the Bail Amendment Act 2016 (Vic) [No.1/2016] – incorporates the very significant difference between bail determinations for a child and for an adult contained in recommendations 128 & 129 of the Law Reform Commission’s Review of the Bail Act (see section 9.6 below). Section 3B(1) provides-
“In making a determination under the BA in relation to a child, a court must take into account (in addition to any other requirements under the BA)-
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(f)the likely sentence should the child be found guilty of the offence charged; and
(g)the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.”
Items (b), (c), (d) & (e) are in largely identical terms to the sentencing considerations for a child contained in ss.362(1)(a) to (d) of the CYFA.
In Re E.A. [2016] VSC 378 the applicant was a 17 year old boy of Sudanese descent who came to Australia with his parents via Egypt when he was 5. He was in a show cause situation, having been charged with a number of counts of aggravated burglary, intentionally causing injury and theft of motor vehicle arising from two separate home invasions in the company of 4 other young men on 23/04/2016. At the time he was on bail after a deferral of sentence on 06/04/2016 on similar serious charges. He was also on bail for affray said to have occurred at Federation Square on 12/04/2016. TForrest J noted at [11]-[12] that he was required to take into account the seven considerations in s.3B(1) of the BA and that he was entitled, pursuant to s.3B(2) to take into account evidence of a proposed intensive bail support program which the applicant could be placed on if he was successful in obtaining bail. Factors supporting the application included “the applicant’s youth, his stable family background, his academic accomplishment (he is obviously a bright young man), and the Youth Justice Support”. In refusing bail, T Forrest J said at [16]-[18]:
“I consider that the applicant’s offending, if proven, is very serious, bordering upon grave. I consider that the submission (or foreshadowed submission) that time served (2 months’ detention) is sufficient to deal with the applicant’s criminality is misconceived.
...In my view, the applicant, despite his youth and despite my earnest consideration of the factors in s.3B of the Act, despite his lack of prior history and his sound family background, has failed to show the necessary cause. He was on two sets of bail at the time that he is alleged to have committed these offences. The conditions that were attached to those grants of bail required that he remain at home during curfew hours and that he not associate with a number of the young men who are now his co-accused in the instant offending.
At the time of the alleged commission of these offences he was awaiting sentence for serious offending involving a home invasion. There is a strong case, in my view, that he has participated in two more home invasions involving the vicious assault of residents within those homes. It gives me no pleasure to remand a child in custody, and I regard it as a last resort. The applicant, however, is 17; he is not 12 or 14, and, in my view, represents a danger to public safety.”
9.2.3Prima facie entitlement to bail & exceptions thereto
Section 4(1) of the BApicks up the common law rule enunciated by Cussen J in R v Sefton [1917] VR 259 at 261-2 and gives a person accused of an offence, whether adult or child, a prima facie entitlement to bail except in the limited circumstances referred to in ss.4(1)(c), 4(2) & 4(4):
BAIL ACTSECTION / BAIL SHALL BE REFUSED
4(1)(c) / if the case has been adjourned for inquiries or a report or sentence and the court is satisfied that it would not be in the public interest to release the accused pending completion of the inquiries or receipt of the report or pending sentence.
AWAITING ANSWERS TO INQUIRIES OR A PRE-SENTENCE REPORT
4(2)(a) / in the case of a person charged with treason or murder except pursuant to s.13, namely where the Supreme Court, a judge of the Supreme Court or - in the case of a person charged with murder - the magistrate who commits the person for trial for murder - is satisfied that exceptional circumstances exist which justify the grant of bail.
TREASON OR MURDER
EXCEPTIONAL CIRCUMSTANCES
4(2)(aa) / in the case of a person charged with:
an offence under ss.71 or 71AA of the Drugs, Poisons and Controlled Substances Act 1989 (Vic) [trafficking in a large commercial or a commercial quantity of a drug of dependence] or ss.72 or 72A [cultivation of a large commercial or a commercial quantity of a narcotic plant] or an offence under s.79(1) of conspiring to commit any of those offences; or
an offence under ss.231(1), 233A or 233B(1) of the Customs Act 1901 (Cth) or ss.307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code (Cth) in relation to a commercial quantity of narcotic goods or substances-
unless the court is satisfied that exceptional circumstances exist which justify the grant of bail.
COMMERCIAL OR LARGE COMMERCIAL QUANTITY OF DRUGS
EXCEPTIONAL CIRCUMSTANCES
4(2)(b) / in the case of a person charged with an offence under s.4B(1) or s.21W of the Terrorism (Community Protection) Act 2003 unless the court is satisfied that exceptional circumstances exist which justify the grant of bail.
TERRORISM
EXCEPTIONAL CIRCUMSTANCES
4(2)(d)(i)
& 4(3) / where the court is satisfied that there is an unacceptable risk that the accused person if released on bail would-
fail to surrender himself into custody in answer to his/her bail; or
commit an offence whilst on bail; or
endanger the safety and welfare of members of the public; or
interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself/herself or any other person.
In determining whether an accused is an unacceptable risk, the court must have regard to all relevant matters, including such of the following as appear to be relevant:
(a)the nature and seriousness of the offence;
(b)the character, antecedents, associations, home environment and background of the accused;
(ba)whether the accused has expressed publicly support for-
(i)a terrorist act or a terrorist organisation; or
(ii)the provision of resources to a terrorist organisation;
(c)the history of any previous grants of bail;
(d)the strength of the evidence against the accused;
(e)if expressed to the court, the attitude of the victim to the grant of bail;
(f)any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk;
UNACCEPTABLE RISK
ABSCOND
RE-OFFEND
ENDANGER PUBLIC
INTERFERE WITH WITNESS OR OTHERWISE
OBSTRUCT COURSE OF JUSTICE
4(2)(d)(iii) / where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of deciding any question referred to in this sub-section for want of time since the institution of the proceedings against him/her.
INSUFFICIENT INFORMATION
BAIL ACT
SECTION / BAIL SHALL BE REFUSED
4(4) / where the accused person is charged with the offences and in the circumstances detailed below unless the accused person shows cause why his detention in custody is not justified.
SHOW CAUSE
OFFENDING
WHILE AWAITING
TRIAL
SERIOUS OFFENCE
STALKING WITH HISTORY
CONTRAVENTION OF INTEVENTION ORDER WITH HISTORY
AGGRAVATED BURGLARY/USE OF OFFENSIVE WEAPON
ARSON CAUSING DEATH
DRUGS
DRUGS
DRUGS
BAIL ACT
OFFENCE / An accused is required to show cause where charged:
- with an indictable offence alleged to have been committed while at large awaiting trial for another indictable offence; or
- with a ‘serious offence’ [defined in s.3] and the accused, as an adult, has within the preceding 5 years been convicted or found guilty of an offence against s.30(1) [failing to answer bail]; or
- with an offence against s.21A(1) of the Crimes Act 1958 (stalking) and
(ii)the court is satisfied that the accused on a separate occasion used or threatened to use violence against the person whom he or she is alleged to have stalked, whether or not the accused has been convicted, found guilty of, or charged with an offence in connection with that use or threatened use of violence; or
- with an offence against s.37, 37A, 123, 123A or s.125A of the Family Violence Protection Act 2008 (Vic) or s.100 of the Personal Safety Intervention Orders Act 2010 (Vic) [contravening an intervention order or a family violence safety notice] in the course of committing which the accused is alleged to have used or threatened to use violence and
(ii)the court is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order, whether or not the accused has been convicted, found guilty of, or charged with an offence in connection with that use or threatened use of violence;
- with an offence of aggravated burglary under s.77 of the Crimes Act 1958 or any other indictable offence in the course of committing which the accused or any person acting in concert with the accused is alleged to have used or threatened to use a firearm, offensive weapon, or explosive within the meaning of s.77; or
- with an offence of arson causing death under s.197A Crimes Act 1958; or (Vic); or
- with an offence under ss.71AB, 71AC or 72B of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) [trafficking or cultivation] or under s.79(1) of conspiring to commit any of these offences; or
- subject to s.4(2)(aa), with an offence under ss.231(1), 233A or 233B(1) Customs Act 1901 (Cth) in relation to a commercial or trafficable quantity of narcotic goods; or
- subject to s.4(2)(aa), with an offence under ss.307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code (Cth); or
- with an offence against the BA.
Section 4(2A) of the BA provides that a court is not required to refuse bail in the case of an accused who is serving a sentence if imprisonment for some other cause but any bail granted must be subject to the condition that the person will not be released on bail before he or she is entitled to be released under a parole order made, or which may be made, in respect of him or her.