Bail

The cases identified here provide examples of the way judicial officers have dealt with some of the issues raised in the context statement.

Click on the citation to be directed to a summary of the case in the Case Database.

  • R v Saedam [2015] ACTSC 85 (1 April 2015) – Australian Capital Territory Supreme Court

    Refshauge J at [30]-[34]: ‘In a somewhat similar case, R v Laipato (No 2) [2014] ACTSC 363, I said (at [1]): ‘Despite some laypeople thinking otherwise, bail is not intended to punish people for offences with which they have been charged. Indeed, to the lawyer such a notion is offensive, for it must be recognised that persons who have been charged but not found guilty of offences are, by law, presumed to be innocent’.

    ‘It is also important to state clearly that the Bail Act, as a whole, evinces an intention that real regard must be had by those charged with the grant of bail to the safety of complainants, especially those involved in allegations of domestic violence. It is well known that those who complain of domestic violence are particularly vulnerable, hence s 9F of the Act provides a restriction on the grant of bail by authorised officers, unless they are satisfied that the applicant poses no danger to the complainant.

    ‘Similarly, s 23A of the Bail Act requires a court to consider the concerns of the complainant to be taken into account when considering, inter alia, whether the applicant, while on bail, might commit further offences, which would clearly include domestic violence against the complainant. This does not mean, however, that a person charged with a domestic violence offence must be denied bail.

    ‘The court, in granting such a person bail, may be required to have a keen appreciation of the need to ensure that the vulnerability of such complainants is carefully and properly considered when the likelihood of reoffending is being taken into account. Bail to applicants charged with such offences is not, of course, a minimisation of such charges, much less an endorsement of the behaviour said to constitute that offence.

    ‘That, of course, applies to all bail applications. It is regrettable that it is sometimes necessary to say this. Nevertheless, it is worth recalling what Giles J said in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 at 184; [56]: ‘It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis’’.
  • R v Saunders [2017] SASCFC 86 (27 July 2017) – South Australia Supreme Court (Full Court)
    ‘Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection. If that protection is to be effective and orders of the court or conditions in bail agreements not to be mere scraps of paper, the court must impose punishments for the breach of those orders or agreements which will deter those who contravene the orders or agreements and others who might be minded to do so from offending in that way’ (per Stanley J at [27]).
  • R v Fox [2017] SASC 5 (3 February 2017) – South Australia Supreme Court

    The applicant was charged with two counts of contravening a term of an intervention order and these involved threats to use violence. This enlivened s 10A of the Bail Act namely, that the applicant was not to be granted bail unless he established the existence of special circumstances justifying his release on bail. Hinton J at [16]-[17]: ‘Thus Parliament’s approach reflects the response that it considers must be made, the ordinary response, to an alleged act of defiance to a protective order allegedly perpetrated in circumstances involving violence. It is a response that only tolerates release into the community on bail if special circumstances can be established. Such response pays no heed to whether the accused is a flight risk. Its implementation will also, ordinarily, result in the loss of employment, the fracturing of relationships, the discontinuation of education, financial hardship and hardship to dependents.

    ‘One further point should be made here. Parliament’s response may be accepted as in no small part reflecting the growing awareness in the community of the prevalence of domestic violence. For intervention orders to fulfil their protective purpose, strict compliance must be insisted upon. This approach informs the inclusion of the breach of an intervention order in circumstances of violence within s 10A and explains why specific reference is made to the Intervention Orders (Prevention of Abuse) Act 2009(SA) in s 10(1)(b)(iv)’.

    Hinton J continued at [19]: ‘[S]pecial circumstances will only exist where the applicant can demonstrate that he or she does not pose the risk which Parliament had in contemplation in reversing the presumption and in relation to whom the denial of bail would result in consequences beyond the contemplation of Parliament’. Here, the ‘relevant risk contemplated is of further defiance of an order and violence threatened or perpetrated in doing so, hence incapacitation in the form of the refusal of bail is appropriate to prevent the offender further offending and to protect the victim’.
  • Re S [2005] TASSC 89 (19 September 2005) – Tasmanian Supreme Court

    Slicer J at [2]: ‘Bail is a form of conditional, not absolute, liberty (see generally Griffiths v R [1977] HCA 44; (1977) 137 CLR 293) and has long been a method of accommodating the presumption of innocence, the impact of prolonged detention before trial with the ensuring of receiving attendance at trial and potential risk to the community or the State (see distinctions made in the Statute of Westminster I, “A History of the English Law”, Holdsworth, Vol IV, 525-528)’.

    At [26]: ‘It is neither appropriate nor possible for a court to determine the "merits" of a complaint concerning domestic violence at first instance. That remains an issue for trial. A court is responsible for "future risk" and in making that decision must have confidence in the primary material. The community at large must have confidence in the application of the legislative scheme. The administration of the legislation as required by the Act, s14, is central to that confidence. Application of policy, irrespective of the circumstances of each case, will not enhance the process. The Statute of Westminster (supra) permitted a grant of bail in enumerated cases according to the nature of the crime or offence alleged, and prohibited it in others. That is not the model here used by the Parliament. The tensions created by the understandable need for future protection of a family and the traditional concepts of presumption of innocence and liberty of the suspect, make it more important that the primary material can be relied upon. In this case the applicant was afforded bail upon the provision of a reliable surety and the imposition of residential, geographical and contact provisions’.
  • Re Williams [2018] VSC 76 (23 February 2018) – Victorian Supreme Court

    Justice Champion at [57]-[59] discussed the applicant’s contention that the prosecution case is weak because it relies on the complainant’s evidence:

    … the prosecution points out that cases involving family violence frequently involve ‘word on word’ evidence and that this is often the very nature of these types of cases. The prosecution submits that this circumstance does not of itself warrant the prosecution case as being regarded as weak, or without merit.

    It is clear enough that the case will be strongly defended, and that there are arguable issues to be decided. That said, it was not submitted to me that the case should be regarded as inherently weak.

    From what I have been able to glean in this application I cannot conclude that the prosecution case is weak.
  • Dickerson v The State of Western Australia [2020] WASC 425 (18 November 2020) – Western Australia Supreme Court

    It was significant that the applicant had refused to have contact with the complainant while remanded in custody, even though she was permitted to do so. The court noted at [96]:

    “It is an irony in matters of this kind that a person who is remanded in custody for having breached a condition that prevented contact with a complainant is not prohibited from having contact with the complainant once they are in custody”.

    And continued at [97]:

    “Of course, in circumstances in which the applicant is well aware that she may put her prospects of being released on bail at risk if she were to have contact with the complainant, one might understand that she would exercise caution in that regard. However, the applicant has gone further. She has made an application and been granted the FVRO to prevent the complainant, Mr N, from having contact with her or approaching her. In other words, she has taken positive steps to give effect to the purpose to which cl 2(c) and (d) of sch 1 pt D of the Act are directed. That, it seems to me, is an unusual situation which, in combination with the applicant’s steps towards rehabilitation and the hardship that she will be required to endure if she remains in custody in the metropolitan area while her mother and her young child remain in Carnarvon, does amount to exceptional reasons why the applicant should not be kept in custody”.