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El Sayed, Bassem 2017 VSC 563

OVERVIEW

Bail as a concept in law, means an accused is granted release from custody from officers of the law (the police) and into the custody of a person that is normally known to the accused. The accused make an undertaking that he/she will appear at a certain time and place to answer the charges against them. Failure of an accused to be present can mean that the accused may be liable to lose the amount of money that was issued when bail was granted. An interesting point in bail procedure is that the money lodged as security must not be from the accused, and is considered a corruption of the bail process if an accused is also the surety.

FACTS

In this case, the applicant was arrested in Aug 2017 charged with extortion with threat to injure, stalking, harassing a witness, using a carriage service to menace and attempting to prevent the course of justice. The applicant was charged in Sep 2017 whilst on bail with assault, affray and drug related matters, and one he was also charged with contravening a bail condition which were failed against him. The applicant while he was on bail made threats of violence and text messages against El Samad and his family trying to recover a drug debt.

Additionally, at the time of the alleged offending in March 2017, the applicant was the subject of a Community Corrections Order (CCO) for one year.

In order for bail to be practical, the applicant is required to show cause why his detention in custody is not justified under s4 of the Bail Act 1977 (the Act).

The applicant was initially refused bail in Aug 2017 on the basis that the applicant failed to show cause and was an unacceptable risk of committing further offences on bail, endangering the safety and welfare of member of the public and interfering with witnesses or preventing the course of justice.

The applicant could finally seek an order granting his release on bail on conditions that he reside at a particular address, report daily to police station, not contact any witnesses for the prosecution, possess one mobile phone and provide the number to the informant, not leave the state of Victoria and not attend the area where the complainant lives or works.

The crown then argued the refusal of bail on the basis that even though this is the applicant’s first time in custody, he has a significant criminal history of offences of violence, dishonestly, firearm, driving and drug offences. He has failed to attend appointments in accordance with CCO and he has allegedly committed further offences whilst on bail for other offences allegedly committed in 2016.

The judgment was then concluded by the court that the applicant has not shown cause why his continued detention in custody is not justified. As such, his application for bail must be refused.

SUMMARY

Bail may be refused if there is an ‘unacceptable risk’ of certain behaviours. There is no assumption that bail will be granted to an accused person awaiting trial if that person has committed either an ‘exceptional circumstances’ offence or a ‘show cause’ offence. (e.g murders, drug offences).

The presumption in favour of bail does not apply where the accused is charged with certain serious offences. There are two categories of such offences: “exceptional circumstances” offences and “show cause” offences. An accused charged with such an offence will be refused bail unless they can establish “exceptional circumstances” that justify bail, or “show cause” why their detention is not justified.

Parliament’s intention is clearly pointed that, persons charged with these types of offences, particularly drug matters, should be denied bail unless they can demonstrate exceptional circumstances. However, the hurdle should not be set so high that it is impossible for an accused person in custody to ever achieve or virtually every achieve.  Bail is not about punishment but about ensuring a person attends court to answer charges.

OUR COMMENT

Bail is a written promise you sign to come to court on the date written on the undertaking to face the charges against you.

To get bail, you may have to agree to conditions, such as:

  • regularly reporting to a police station
  • living at a certain address
  • having someone act as a surety.

These are called bail conditions . If you break a condition of your bail, or don’t appear in court when you’re supposed to, you’re breaking the law.

If you need to change your bail conditions you’ll have to apply to court. Bail isn’t automatic. The court must consider a number of factors when deciding whether or not to give you bail. If you’re given bail, you’ll have to sign a bail undertaking. This is a written promise that you’ll come to court when you’re supposed to and comply with the bail conditions. It’s very important you read and understand your bail undertaking. You should keep a copy for your records. If you lose your copy, you can go back to the court or the watch-house and ask for a copy.