The Law Handbook 2024

210 SECTION 3: Fines, infringements and criminal law crime to be tried without unreasonable delay and to be released if that does not occur. In Gray v Director of Public Prosecutions [2008] VSC 4, Justice Bongiorno examined the Charter Act and its interaction with the Bail Act. See also his Honour’s comments in Re Unumadu [2007] VSC 258 (23 July 2007). In Barbaro v Director of Public Prosecutions (Cth) [2009] VSCA 26 (‘ Barbaro case ’ ), the Commonwealth DPP ‘conceded that the Charter [Act] was applicable to an application for bail in respect of Commonwealth offences’. Justices Maxwell, Vincent and Kellam accepted the submissions on behalf of the Attorney- General ‘that the Charter [Act] did not require any departure from the existing approach to the treatment of delay as an issue in bail applications’. Their Honours went on to state that: … as Kellam J pointed out in Mokbel v DPP (No 3) , there will be circumstances where the actual or anticipated delay is of such a magnitude that risks which would, in other circumstances, be regarded as unacceptable may properly be viewed as acceptable. As Kellam J said, the community will not tolerate the indefinite detention of persons awaiting trial. Whether and when the delays in a particular case can be so characterised will depend on the circumstances. Before the decision in the Barbaro case, there was a belief that the Human Rights Charter modified the Bail Act, but it seems this is not the case. The Human Rights Charter re-states the common law aversion to delaying bringing an accused person to trial, rather than introducing an additional principle. If the Human Rights Charter is relied on, notice must be given to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (s 35 Charter Act). Duty of a bailed person An accused person who is granted bail is under a duty to attend court in accordance with the undertaking of bail and to surrender themselves into custody when so attending (s 5(1A) Bail Act). Failing to appear in court Aperson released on bail who fails without reasonable cause to appear in accordance with the undertaking of bail and surrender themselves into custody is guilty of an offence. This carries a penalty of two years’ imprisonment. The accused has a defence to such a charge if it can be proven that there are reasonable grounds for their failure to appear (s 30 Bail Act). Contravening a bail condition It is an offence to contravene a bail condition without a reasonable excuse (see s 30A(1) Bail Act; see also the definition of ‘conduct condition’ in ss 3, 5AAA(4)). The offence does not apply to a condition requiring the accused to attend and participate in bail support services. The offence also does not apply to a child released on bail. It is also an offence for a person to commit an indictable offence while on bail (s 30B). Both these offences carry a maximum penalty of three months’ imprisonment or 30 penalty units. (For more information about penalty units, see ‘A note about penalty units’ at the start of this book.) Infringement notices for breaching minor conditions Police officers can issue infringement notices for the offence of breaching a bail condition (s 32A Bail Act). The infringement notices are used for minor contraventions (e.g. breaching a reporting condition by being late). The infringement penalty for an offence against section 30A is one penalty unit. Arresting people on bail Any police officer (or a protective services officer on duty at a railway premises or in the surrounding area) may arrest without warrant any person who has been released on bail if it is believed on reasonable grounds that the person is likely to break, is breaking, or has broken any bail condition (s 24 Bail Act; definition of ‘designated place’ in s 3(1) Victoria Police Act 2013 (Vic); reg 27 Victoria Police Regulations 2014 (Vic)). The court may issue warrants for the arrest of a person bailed where they have failed to answer bail or for the purpose of imposing additional conditions or security (s 25 Bail Act). A bail decision-maker may also issue a warrant for the arrest of a person bailed for the purpose of imposing a further security (s 26). A police officer who arrests an accused person who is on bail, but who is suspected of breaching their bail, must bring that person before a bail