MLL218 Study Guide - Final Guide: Surety, Affidavit, Arson
24 May 2018
School
Department
Course
Professor
6a Bail
TENSION IN BAIL MATTERS
Ensuring the accused will attend court, will not offend, threaten safety/welfare of public or
interfere with witnesses V Ensuring an accused, who has not yet been found guilty
and is therefore entitled to the presumption of innocence, is not deprived of liberty
unnecessarily.
S 22 Charter: Persons detained without charge must be segregated from those who have
been convicted and treated appropriately
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BAIL
Conditions:
- Can be imposed
o Not approaching the victim: s 5(2A)(d)
o Subject to curfew: s 5(2A)(c)
o Attend for drug/alcohol treatment: s 5(2A)
o Live at a specified address: s 5(2A)(b)
o Regularly report to Police station: s 5(2A)(a)
o Surrender passport: s 5(2A)(e)
- Reason for imposing
o Reasonable and imposed for the purposes specified in s 5(3) (unacceptable
risk, presumption of bail etc.)
o No more onerous than is required to achieve the purposes of s 5(3)
REMAND
Occurs if:
- Have no applied for bail
- Have been refused bail
- Cannot afford to pay bail or cannot nominate another to pay this on their behalf
(surety – s5(7)&(8))
- Are unable or unwilling to meet the conditions set out by the bail bond
Negative Implications:
While remand is not punitive detention, there can be negative implications:
- Sentence may be less that what was spent in remand
- Sometimes held in same prison as convicted offenders
- More difficult to communicate with lawyer
- Adverse experience for minority groups i.e. aboriginals
- Loss of employment, income, business
- Inability to care for family
- Poor cell conditions
THE PROCESS
Arrested, taken to PO → can be granted by PO, mag, bail justice, judge
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Under s3 of the Bail Act, POs are epoered to grat ail. S 10(1) must be a officer in
charge or sergeant or above. If denied by PO, bring in front of court to determine.
When?
- After arrest
- When accused is brought before court
- During trial
- After conviction and sentencing, pending appeal
- Following a successful appeal and prior to any re trial
The Hearing s 8
Standard of proof is required on the balance of probs → PO must be present → Court can
consider any credible evidence: s 8(1)(3)(e) → Prosecution presents first (probability of
conviction, prior convictions, prior failure to answer bail): s 8(1)(c), (iii) → Accused can not
be cross examined: s 8(1)(b) → if bail granted, prosecution can appeal: DPP v Fallon 2001
CATEGORIES OF BAIL APPLICANTS
1. Presumption of Bail
a. ‘ight to ail: DPP Aott per Gillard J, Charter s A perso…
shall e grated ail
i. However, this is rebutted
2. Unacceptable risk: s 4(2)(d)(i)
a. Abscond
b. Offend
c. Endanger public
d. Obstruct course of justice i.e. not show up to court
i. Minimising risks:
1. Imposing bail conditions
2. Requiring the accused to obtain a
surety
3. Show cause (+ unacceptable risk): s 4(4)
a. arson causing death,
b. indictable offence while awaiting trial for another indictable offence,
c. aggravated burglary,
d. stalking,
e. weapons offence,
f. trafficking in a drug of dependence
g. family violence
h. offence against the Bail Act
i. harged ith serious offee ad,
j. has within the past 5 years been found guilty of failing to answer bail
i. Onus on D to show cause
R v Johnson (2006) VSC 157
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Ensuring the accused will attend court, will not offend, threaten safety/welfare of public or interfere with witnesses and is therefore entitled to the presumption of innocence, is not deprived of liberty unnecessarily. S 22 charter: persons detained without charge must be segregated from those who have been convicted and treated appropriately. Ensuring an accused, who has not yet been found guilty. Reason for imposing: reasonable and imposed for the purposes specified in s 5(3) (unacceptable risk, presumption of bail etc. , no more onerous than is required to achieve the purposes of s 5(3) Cannot afford to pay bail or cannot nominate another to pay this on their behalf (surety s5(7)&(8)) Are unable or unwilling to meet the conditions set out by the bail bond. While remand is not punitive detention, there can be negative implications: Sentence may be less that what was spent in remand. Sometimes held in same prison as convicted offenders. Adverse experience for minority groups i. e. aboriginals.
