The Law Handbook 2024
204 SECTION 3: Fines, infringements and criminal law • the strength of the Crown’s case; • the likely sentence; • any hardship caused by detention; • the bail applicant’s willingness to accept stringent bail conditions; • parity; • the need to prepare a defence; • the bail applicant’s age, health or vulnerability; • the bail applicant’s need to attend drug rehabilitation/access treatment; • the bail applicant is a child; • Aboriginality; • COVID-19. Surrounding circumstances: Delay Delay is only an exceptional circumstance if the delay is out of the ordinary, taking into account the usual listing delays (see Tang (1995) 83 A Crim R 593). (A two-year delay in a drug trafficking case was not exceptional in Mokbel v Director of Public Prosecutions [2002] VSC 127 but see later Mokbel v Director of Public Prosecutions (No 3) [2002] VSC 393.) In Alexopoulos (unreported, VSC, 23 February 1998), Justice Hampel referred to 12 months’ delay, as a rule of thumb, being inordinate. In Hildebrandt v DPP [2006] VSC 198, Justice King referred to a period in custody of two years and eight months prior to trial (in onerous conditions) as being a significant factor in granting bail (though the applicant was not required to demonstrate exceptional circumstances). Justice Lasry in Re Marijancevic [2010] VSC 122 held that a period of 22 months in custody between arrest and trial was in itself an exceptional circumstance. See also the comments of Justice Coldrey in DPP v Cozzi [2005] VSC 195; Re Biba [2020] VSC 566 (delay: two years and seven months); and Re Jiang [2021] VSC 148 (delay: three years). Delay may also be a significant factor if the time spent on remand is likely to exceed the total effective sentence or the non-parole period (see Cao v DPP [2015] VSC 198) but it is only one of many factors that must be considered and is not on its own determinative (see Re Kelly [2022] VSC 232). See also Lennon [2016] VSC 239, which considered the extent of any sentence that would be served before the application for leave to appeal, or the appeal itself, could be heard. A significant lapse of time between the alleged offending and laying of charges may be particularly relevant in determining whether exceptional circum stances exit (see Re O’Shea [2019] VSC 791 and Rapsarda v The Queen [2022] VSC 192). In Roberts v The Queen [2021] VSCA 28, the Court of Appeal considered a decision to refuse bail for an applicant who had been granted a retrial for two convictions for murder 18 years earlier. The court noted that many circumstances that constitute exceptional circumstances are such that ‘they are capable of rendering continued pre-trial incarceration. It is the need to prevent or mitigate future injustice that justifies a grant of bail’. The court held that simply establishing exceptional circumstances in a general sense is not sufficient and ‘there must be exceptional circumstances that justify the grant of bail and that the concept of justification is central’. Delay and COVID-19 In Re Broes [2020] VSC 128 at [36], the court acknowledged that in response to the COVID-19 pandemic, courts have introduced measures that have caused significant delays. Accordingly, accused persons potentially face lengthy periods on remand awaiting the hearing of their matter. In Re McCann [2020] VSC 138 at [39], the court held that the delay in trials due to COVID-19 may establish exceptional circumstances. This is especially the case where such a delay is likely to lead to the accused spending longer on remand than they would in prison as a sentenced prisoner (see Re Broes [2020] VSC 128 at [41]; Re Tong [2020] VSC 141 at [33]– [34]; Thomas v Kitching [2020] VSC 206 at [6], [92]). It does not follow that exceptional circumstances will be established even in circumstances where the delay may be quite significant. The COVID-19 pandemic needs to be considered in light of all the surrounding circumstances (see Re El-Refei (No 2) [2020] VSC 164). On the issue of delay, see also Re Ashton [2020] VSC 231 at [65]–[66] and Re Bochrinis [2020] VSC 411 at [8]. It should not be assumed that the pandemic will cause significant delay. There must be evidence to support such a finding (see DPP (Cth) v Lee [2020] VSC 275 at [93]–[99]). Surrounding circumstances: Strength of the Crown’s case Where it may be assessed, the strength of the Crown’s case is a relevant factor to consider (see DPP (Vic) v Cozzi [2005] VSC 195). See ‘Unacceptable risk’, below.
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