Bail and the Charter Act

The Charter of Human Rights and Responsibilities Act 2006 (Vic) restates the common law position that delay in bringing an accused person to trial is not acceptable.

In recent bail decisions, attempts have been made to rely upon, or incorporate provisions of, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”) – in particular section 25, which refers to the right of a person accused of a 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 (“the 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.

Prior to the decision in the Barbaro case there was a belief that the Charter Act modified the Bail Act, but it seems this is not the case. The Charter Act re-states the common law aversion to delay in bringing an accused person to trial, rather than introducing an additional principle.

If the Charter Act is relied upon, notice must be given to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (s 35 Charter Act).