The Law Handbook 2024

Chapter 3.6: How bail works 207 granting bail with stringent conditions was an acceptable alternative to a lengthy and uncertain period on remand during a pandemic. This was in light of the requirement in the Bail Act to consider all available options before remanding a child. In Re GA [2022] VSC 148 at [61] the court held that the mandatory considerations of section 3B are important when considering whether the imposition of conditions can mitigate risk and that a child should be released on bail, with conditions, wherever possible. Surrounding circumstances: Aboriginality In Re LT [2019] VSC 143 (at [66]–[67]), exceptional circumstances were found to exist in the case of a young Aboriginal applicant who should be supported to explore her heritage and strengthen family bonds, rather than have that opportunity disrupted by time on remand. See also Re Moore [2019] VSC 344 at [23]. In Re Firebrace [2023] VSC 137 the court acknowledged that “bail is a significant matter for Aboriginal and Torres Strait Islander accused, both because of their overrepresentation in the criminal justice system and for cultural reasons” [114]). In Re Murray [2023] VSC 266 the court held that the risk to connection to culture and community support presented by the incarceration of a young Aboriginal offender is an important factor in determining if exceptional circumstances are established ([78]–[79] and [86]). In Re Foster [2020] VSC 62, the court considered a number of matters relating to an applicant’s Aboriginal heritage. The court found that exceptional circumstances may be established in circumstances where the vulnerability of Aboriginal persons in custody were combined with certain factors. These factors include providing an alternative to remand, opportunities to explore culture, and the availability of treatment for drug and alcohol issues ‘based on therapeutic community principles and Aboriginal cultural practices’ (at [14] and [33]). An applicant’s Aboriginality is an important consideration but does not swamp all other considerations (see Re Reker [2019] VSC 81 at [69]). In Re KF [2022] VSC 349, the court considered the grief associated with the death of an applicant’s family members when the applicant was on remand and the guilt associated with being unable to participate in Sorry Business. The court held that these matters may be considered as circumstances demonstrating the existence of a compelling reason [40] and highlighted that caution should be applied in questioning a person’s Aboriginal or Torres Strait Islander heritage where no such issue is raised in the material before the court [38]. Aboriginality and COVID-19 In the context of COVID-19, in Re Kennedy [2020] VSC 187 at [6]–[7] and Thomas v Kitching [2020] VSC 206 at [70]–[71], the court took into account the increased burden of restrictions on remand on Aboriginal offenders. That is, the accused’s isolation from family during a period of grief, and the increased danger of contracting COVID-19 in prison. Show a compelling reason Overview If the bail applicant is charged with any of the offences listed in schedule 2 of the Bail Act, or falls into a certain category, the bail decision-maker must refuse bail, unless the accused can ‘show a compelling reason’ that justifies bail being granted (see sch 2 Bail Act (offences: show compelling reason) at www.legislation.vic.gov.au) . In Re Matemberere [2018] VSC 762 at [29]–[30]), the court found that an accused person subject to an adjourned undertaking pursuant to section 75 of the Sentencing Act (commonly referred to as ‘a bond’) is serving ‘a sentence’. This may have application in determining whether an applicant for bail is required to establish a compelling reason. Bail decision-making process for schedule 2 offences Since 1 July 2018, the Bail Act has included flow chart 2 (s 3D(3)), which sets out the key features of the decision-making process and is a guide to the steps a bail decision-maker is required to take in determining whether bail should be granted where an accused is charged with a schedule 2 offence. The test for a decision-maker when an accused is charged with a schedule 2 offence is a two-step test. The first step is to decide whether the bail applicant has demonstrated that a compelling reason exists (see s 4C; flowchart 2 in s 3D(3)). If the bail applicant has not demonstrated that a compelling reason exists, then bail must be refused. If the bail applicant has demonstrated that a compelling reason does exist, then the bail decision-