Bail Amendment Bill 2010

Bail Amendment Bill 2010

Introduction Print

EXPLANATORY MEMORANDUM

561391

BILL LC INTRODUCTION 27/7/2010

General

The Bail Amendment Bill 2010 (the Bill) amends the Bail Act 1977 and the Magistrates' Court Act 1989, and follows on from the Victorian Law Reform Commission's (VLRC) Review of the Bail Act: Final Report (2007).

In its report, the VLRC made 157 recommendations for procedural, administrative and legislative changes to ensure the bail system functions simply, clearly and fairly. The Government is responding to the VLRC recommendations in two stages. The Bill responds to 40 recommendations and represents the first stage of reforms to Victoria's bail system.

Broadly, the aims of the Bill are to clarify aspects of current bail law, codify some existing practices, and promote efficiencies in the operation of the bail system. The Bill also establishes a new legislative framework for the operation of the bail justice system.

Clause notes

PART 1—PRELIMINARY

Clause 1sets out the purposes of the Bill.

Clause 2provides for the commencement of the Bill on 1 January 2011, if it is not proclaimed before that date.

PART 2—BAIL ACT 1977

Part 2 of the Bill makes amendments to the Bail Act 1977 in relation to a range of matters, including: Aboriginal Australians; the conditions of bail; procedures for administering surety conditions; the period for which bail justices are permitted to remand an accused adult; further applications for bail; applications to vary bail conditions; applications to revoke bail; appeals by the Director of Public Prosecutions (DPP) against refusals to revoke bail; appeals by the DPP against orders granting bail; and abolition of a surety's right to apprehend an accused.

It is important to note that the Bail Act 1977 defines "court" to mean "court or judge and, in any circumstances where a member of the police force or other person is empowered under the provisions of this Act to grant bail, includes that member or person".

Clause 3inserts a new heading in the Bail Act 1977.

Clause 4inserts a new definition of Aboriginal person in section 3 of the Bail Act 1977. It also amends the definition of bail justice to reflect the amendments to the Magistrates' Court Act 1989 in Part 3 of the Bill.

Clause 5inserts new section 3A in the Bail Act 1977. New section 3A provides that a court must take into account (in addition to any other requirements of the Act) any issues that arise due to the Aboriginality of an accused when making a determination under the Bail Act 1977.

The VLRC report notes that Aboriginal Australians are over-represented on remand and face unique disadvantages in their contact with the criminal justice system. In recognition of this, the VLRC recommended that the Bail Act 1977 should contain a specific provision for Aboriginal Australians. New section 3A responds to that recommendation.

New section 3A will ensure that consideration of issues that arise due to the Aboriginality of an accused occurs across the spectrum of decisions made under the Bail Act 1977. For instance, submissions may be considered on the issues of unacceptable risk, appropriate bail conditions, extending bail in an accused's absence, or determining whether an accused has reasonable cause for failing to attend court.

While new section 3A requires a court to take into account any issues that arise due to an accused's Aboriginality, the court will still retain discretion as to the appropriate weight to give these issues. That is, they will be just one of a range of factors a court takes into account when making a determination under the Bail Act 1977.

Clause 6inserts a new heading in the Bail Act 1977.

Clause 7amends section 4 of the Bail Act 1977.

Subclause (1) repeals paragraph (b) of subsection (2). Paragraph (b) requires a court to refuse bail if an accused was in custody pursuant to the sentence of a court for some other cause. Paragraph (b) was made redundant by subsection (2A), which provides that a court is not required to refuse bail in such circumstances, but any order granting bail must be subject to the condition that the accused will not be released on bail before he or she is entitled to be released on parole.

Subclause (2) is a consequential amendment required as a result of the amendments in subclause (1).

Subclause (3) inserts new paragraph (f) in subsection (3). Subsection (3) requires a court to have regard to all relevant matters when assessing risk. The risk being assessed is whether, if released on bail, an accused would: fail to attend court; commit an offence; endanger the safety or welfare of the public; or interfere with witnesses or otherwise obstruct the course of justice. Subsection (3) provides a list of non-exhaustive considerations that may be relevant. New paragraph (f) adds as a consideration 'any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk'. This provision is intended to remove any uncertainty that may have existed as to whether the conditions that may be imposed can be considered in assessing risk.

Clause 8substitutes section 5 of the Bail Act 1977.

Current section 5 provides for the imposition of both general conditions of bail (release on own undertaking, or with a deposit and/or a surety condition) and special conditions of bail (release on own undertaking with conditions about conduct). It requires general conditions to be no more onerous for an accused than the nature of the offence and the circumstances of the accused appear to the court to be required in the public interest. This requirement is not attached to special conditions, which are far more commonly imposed. However, special conditions had to be considered necessary to secure that an accused: attended court as required; did not commit an offence while on bail; did not endanger the safety or welfare of members of the public; and did not interfere with witnesses or otherwise obstruct the course of justice.

As recommended by the VLRC, new section 5 removes the distinction between general and special conditions, applies the requirements for imposition of conditions consistently, and reflects better the way conditions are currently imposed. It also locates together all the requirements for imposing conditions in the Bail Act 1977.

New subsection (1) provides that a court must impose a condition requiring an accused to attend court at the time and place required by the undertaking, not depart without leave of the court and, if given leave, to return again at the time specified by the court. This is not a new requirement. It was previously contained in section 15(1) of the Bail Act 1977, which is being repealed by clause 12.

New subsection (2) provides that a court considering the release of an accused on bail must consider the conditions for release of the accused in the following order—

• on his or her own undertaking without any other condition;

• on his or her own undertaking with conditions about conduct;

• with a surety or a deposit of money, with or without conditions about conduct.

New subsection (3) provides that a court may only impose a condition in order to reduce the likelihood that an accused may—

• fail to attend in accordance with his or her bail and surrender into custody at the time and place of the hearing or trial;

• commit an offence while on bail;

• endanger the safety or welfare of members of the public;

• interfere with witnesses or otherwise obstruct the course of justice in any matter before the court.

This requirement is not new, previously applying to special conditions of bail. It does not substantially change the law, but makes it clearer that conditions may only be imposed to address unacceptable risk factors, not to punish the accused (which is a sentencing purpose) or set accused people up to fail by imposing conditions with which they will not be able to comply. It is not intended to have any effect on the ability to impose a condition to comply with a bail support program. These programs address unacceptable risk factors by acting on the factors that may lead accused people to offend, or fail to attend court.

New subsection (4) provides that each condition and the number of conditions must be no more onerous than is required to achieve the purposes in subsection (3), and must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused.

New subsection (5) provides that, if a court is considering imposing a deposit condition, regard must be had to the means of the accused in determining both whether to impose the condition and the amount to be deposited. If a court is satisfied that the accused does not have sufficient means to satisfy a deposit condition, new subsection (6) requires the court to consider whether any other condition would achieve the purposes in subsection (3).

New subsection (7) provides that, if a court is considering imposing a surety condition, regard must be had to the means of the surety when determining both whether to impose the condition and the value of the surety. If a court is satisfied that the accused is unable to provide a surety with sufficient means, new subsection (8) requires the court to consider whether any other condition would achieve the purposes in subsection (3).

New section 5 contains a note referring to sections 7(2), 12, 21, 23 and 25 of the Charter of Human Rights and Responsibilities Act 2006. These sections provide for: the right to freedom of movement and to liberty and security of the person; the rights of children and adults in criminal proceedings; and how a human right may be limited after taking into account all relevant factors, including any less restrictive means reasonably available to achieve the same purpose.

The VLRC recommended adding a note like this. On the basis that it would ensure the Charter provisions are considered when bail conditions are imposed, particularly those that restrict freedom of movement, and provide guidance on what may be considered "no more onerous than is required". The recommendation was also aimed at ensuring Charter provisions are considered when deciding applications to vary conditions and reviewing conditions.

Clause 9omits the word "special" from section 5A(1)(d)(i) of the Bail Act 1977. This consequential amendment is required as a result of the amendments in clause 8, which remove the distinction between general and special conditions of bail.

Clause 10amends section 9 of the Bail Act 1977.

Section 9 contains the eligibility and suitability requirements for sureties, and procedural requirements for admitting an accused to bail with a surety.

Subclause (1) inserts new subsection (2A). New subsection (2A) provides that if an objection is raised to a proposed surety, the suitability of the proposed surety is to be determined by a magistrate or judge. The provision is deliberately silent on who may raise the objection in order to allow objections to be raised by anyone involved in the proceeding—the registrar, the police informant or prosecutor or the court.

Subclause (2) substitutes subparagraph (ii) in paragraph (a) of subsection (3) to provide that a surety may be required to lodge a document that is evidence of the ownership and the value of property or any other asset to the amount of bail. Current subparagraph (ii) provides for a surety to be required to lodge a savings pass-book, deposit stock card or other account document together with a signed withdrawal form as security for the amount of bail. The new subparagraph better reflects current practice.

Subclause (3) substitutes paragraph (b) in subsection (3) to provide that, before admitting an accused to bail with a surety, a court or person authorised by section 27 of the Bail Act 1977 shall require the surety or sureties to make before it or him an affidavit of justification for bail and sign the undertaking of bail. These two requirements are not new, but the new paragraph makes express reference to the undertaking of bail whereas the current paragraph does not. Current paragraph (b) allows the affidavit of justification for bail to be made before any other court or authorised person. This was intended to enable a surety to sign bail forms when in a different location to the accused. New paragraph (b) does not allow this as new subsections 9(3A) to 9(3D) establish a clear procedure for admitting an accused to bail when the surety is in a different location to the accused.

Subclause (4) substitutes subsections (3A), (3B), (3C) and (3D) to provide a clearer procedure for an accused to be admitted to bail with a surety condition when the surety is unable to be present at the same location as the accused. For example, the accused may be in custody in Melbourne and the surety may be interstate or in country Victoria. This responds to a VLRC recommendation, made because the current provisions were found to be confusing and unclear. For example, they do not refer to all the documents that need to be signed or sworn, and seem to require a surety to appear before a court, whereas the assessment of sureties and the procedure for entering bail are usually carried out by others authorised under section 27. That is, court officials, as defined by that section, senior police, bail justices, or when the accused is in prison, senior prison officers. Further, the assessment of the surety's suitability is not clearly provided for by the current provision, so that it is open for this assessment to be conducted by the person before whom the surety's affidavit of justification for bail is sworn, rather than the person admitting the accused to bail. The new subsections make it clear that the person admitting the accused to bail also assesses the suitability of the surety. The involvement of a second person is solely for the purpose of the swearing of the surety's affidavit of justification for bail.

New subsection (3A) allows a surety to appear before a court by audio visual link or audio link in accordance with Part IIA of the Evidence (Miscellaneous Provisions) Act 1958 for the purpose of section 9. This essentially reproduces current section 9(3A), which was intended to allow a surety in regional Victoria or interstate to appear before the court at which the accused was being admitted to bail by audio visual link or audio link. New subsection (3A) also allows a surety to give information to a person authorised by section 27 by audio visual link or audio link for the purposes of section 9. This is new. A surety may appear before the court, but in many cases the court hears submissions as to the availability of the surety, and then the assessment of the surety is conducted by a court registrar, or other authorised person. New subsection (3A) provides a clear procedure for this assessment to occur over the telephone, for example.

New subsection (3B) provides that, where audio visual link or audio link is used the undertaking of bail may be constituted by—

• the undertaking signed by the accused;

• a copy of that undertaking transmitted to and signed by the surety;

• the copy signed by the surety transmitted to the court or authorised person admitting the accused to bail.

New subsection (3B) further provides that the affidavit of justification for bail may be constituted by the affidavit of the surety sworn before any person authorised by Part IV of the Evidence (Miscellaneous Provisions) Act 1958 to take affidavits, and a copy of that sworn affidavit transmitted to the court or authorised person admitting the accused to bail.

New subsection (3C) allows a court or authorised person to act on a copy of a document transmitted in accordance with subsection (3B). This allows for an accused to be released on bail immediately the procedure is completed, without waiting for the original documents signed by the surety to be received by the court or authorised person.

New subsection (3D) requires the surety to send the original signed copy of the undertaking and the original sworn affidavit to the court or authorised person who admitted the accused to bail.

Subclause (5) substitutes subsection (7). This is a consequential amendment required as a result of the amendments in subclause (2).

Clause 11amends section 12 of the Bail Act 1977.

Subclause (1) amends subsection (1) to replace a reference to "warrant of commitment" with "remand warrant" and, following on from this, to update references to committing an accused to prison. These amendments reflect that warrants of commitment are no longer used to remand an accused in custody; rather remand warrants are used for this purpose.

Subclause (1) also makes a consequential amendment to subsection (1) that is required as a result of the amendments in clause 8, which remove the distinction between general and special conditions of bail.

Subclause (2) substitutes subsection (1A) with a new subsection that requires a bail justice, on refusing bail, to remand an adult accused to appear before a court on the next working day, unless this is not practicable. If the next working day is not practicable, the bail justice must remand the accused to appear before a court within two working days. Current subsection (1A) requires a bail justice to remand an accused in custody for no more than eight clear days, though the practice for some time has been to remand an accused to the next working day. Although an upper limit of two working days has been set in new subsection (1A), the intention is for an accused to be taken before a court on the next working day, unless it is not operationally possible for police to do so.

It is important to note that the period for which a bail justice may remand an accused who is a child is contained in section 346(4) of the Children, Youth and Families Act 2005. In accordance with that section, a bail justice must remand a child who has been refused bail to appear before the Children's Court on the next working day or in a prescribed region of the State, within two working days.

Subclause (3) amends subsection (2) to replace a further reference to "warrant of commitment" with "remand warrant" and to update references to committing an accused to prison.

Subclause (3) also makes a consequential amendment to subsection (2) that is required as a result of the amendments in clause 8, which remove the distinction between general and special conditions of bail.

Clause 12repeals section 15 of the Bail Act 1977.

As noted in the discussion in clause 8, the requirement for attendance at court in answer to bail to be included as a condition of bail in current section 15(1) is reproduced in new section 5(1).

Current section 15(2) provides a procedure for a surety to sign the undertaking of bail at a different location to the accused where it is inconvenient for the surety to attend at the prison. The procedure requires two bail justices to sign, duplicate and transmit the documents. The procedure is not used and is outmoded. A new procedure for an accused and a surety to sign bail forms when they are in different locations is established in new sections 9(3A) to 9(3D) in clause 10.