9. CRIMINAL DIVISION – CUSTODY & BAIL 9.0 Major amendments to the Bail Act in 2018 9.1 Child in custody 9.1.1 9.1.2 9.1.3 9.2 Prescribed regions for 2 day bail justice remand Placement of remanded child Breach of Children’s Court sentencing order Bail - Legislation 9.2.1 9.2.2 9.2.3 9.2.4 9.2.5 9.2.4/5 9.2.6 9.2.7 9.2.8 9.2.9 9.2.10 Differences between child & adult Additional considerations in bail determinations for children Prima facie entitlement to bail and exceptions thereto – Flow charts Step 1 – exceptional circumstances test Step 1 – show compelling reason test Meaning of ‘serving a sentence’ for the tests in 9.2.4 & 9.2.5 Additional powers of a bail decision maker Bail application where possible family violence issue Requirement for reasons when bail granted for Schedule 1 or 2 offence Accused (not child, vulnerable adult or Aboriginal) on 2 or more bail u’takings Accused with terrorism record 9.3 Bail - History, Questions, Factors & Principles 9.4 Bail - 'Exceptional circumstances', 'Show compelling reason', 'Unacceptable risk' 9.4.1 Exceptional circumstances 9.4.1.1 CASES:EXCEPTIONAL CIRCUMSTANCES FOUND – BAIL GRANTED 9.4.1.2 CASES:EXCEPTIONAL CIRCUMSTANCES NOT FOUND – BAIL REFUSED 9.4.1.3 CASES: EXCEPTIONAL CIRCUMSTANCES FOUND BUT UNACC. RISK 9.4.2 Show compelling reason (previously show cause) / Unacceptable risk 9.4.2.1 How does an accused show compelling reason (show cause) 9.4.2.2 CASES: COMPELLING REASON FOUND – BAIL GRANTED 9.4.2.3 CASES: COMPELLING REASON FOUND BUT UNACCEPTABLE RISK 9.4.2.4 CASES: COMPELLING REASON NOT FOUND – BAIL REFUSED 9.4.3 Where likelihood of sentence is less than time likely to be spent in custody 9.4.4 Unacceptable risk 9.4.4.1 Otherwise unacceptable risk deemed acceptable due to particular circs 9.4.4.2 CASES: PRIMA FACIE RIGHT/ACCUSED NOT AN UNACCEPTABLE RISK 9.4.4.3 CASES: PRIMA FACIE RIGHT/ACCUSED AN UNACCEPTABLE RISK 9.4.5 Whether bail conditions an element of exceptional circs/compelling reason 9.4.6 Refusal of bail where person seriously injured 9.4.7 Bail pending pre-sentence or other report 9.4.8 Bail pending appeal against conviction or sentence 9.4.9 Relevance of the standard of medical care in custodial facility 9.4.10 Relevance of the Charter of Human Rights and Responsibilities Act 2006 9.4.11 Relevance of Aboriginality 9.4.12 Relevance of youth 9.5 Bail - A Miscellany 9.5.1 9.5.2 9.5.3 9.5.4 9.5.5 9.5.6 9.5.7 9.5.8 Whether the principle of ‘parity’ applies to bail applications Evidence in bail applications Bail undertaking, Conduct conditions & Sureties Extension of bail Reasons and sufficiency thereof Further application for bail – New facts or circumstances 9.5.6.1 CASES IN WHICH NEW FACTS/CIRCUMSTANCES WERE DISCUSSED Application to vary bail Application to revoke bail Produced by former Magistrate Peter Power for the Children's Court of Victoria Last updated 04 March 2022 9.1 9.5.9 9.5.10 9.5.11 9.5.12 9.5.13 9.5.14 9.5.15 9.5.16 9.5.17 9.5.18 Appeal to Supreme Court 9.5.9.1 Appeal by DPP 9.5.9.2 Appeal by remandee No power for surety to apprehend principal – Discharge of surety Arrest of person released on bail Breach of bail No concept of being ‘owed bail’ Bail applications by children compared with adults Bail applications by persons aged 18 or over in a remand centre Power to return accused to youth justice centre Limited bail support programs in Children’s Court Extradition bail Some of the material in sections 9.3 & 9.4 is taken, with her kind permission, from a private research paper entitled "A Digest of Bail Cases", prepared by former Deputy Chief Magistrate Jelena Popovic. The paper is not available to the public. The cases in this Digest mostly relate to adults but the principles are also broadly applicable to children. However, apart from those cases in which issues of principle are discussed, most of the cases turn on their particular facts and are of limited use as precedent. THE REST OF THIS PAGE IS BLANK Produced by former Magistrate Peter Power for the Children's Court of Victoria Last updated 04 March 2022 9.2 UNLESS INDICATED OTHERWISE, ALL LEGISLATION REFERRED TO IS VICTORIAN. 9.0 Major amendments to the Bail Act in 2018 Following a review of the operation of the Act by Mr Paul Coghlan, stage one of major amendments to the Bail Act 1977 [No.9008] [‘BA’] came into operation on 21/05/2018, stage two on 01/07/2018 and stage three on 01/10/2018. The amendments commencing on 01/07/2018 included a substantial renum