A genuinely conscious web developer, Jeremy Hammond is accused of using his computer savvy to attack conservative groups and State operators. He is being charged with providing Wikileaks the documents for their latest Stratfor release.
Bail in family violence matters in Victoria is subject to specific legislative provisions that make it more demanding than bail in most other categories of offending. Understanding how the bail process works in a family violence context, what the court considers, and what conditions are likely to be imposed is essential for anyone charged with a family violence offence.
This is general information only and is not legal advice for any specific matter.
The Bail Act 1977 (Vic) imposes specific considerations for bail in family violence matters that do not apply in other criminal proceedings. The court must consider the safety of the protected person and any children when assessing a bail application. The risk of further family violence, the history of family violence between the parties, and the likely effect of bail conditions on the protected person's safety are all expressly relevant considerations. The legislative intent is that safety of the protected person is a primary consideration in bail decisions in this context.
For most family violence offences the accused bears the burden of showing cause why their detention is not justified. This is a more demanding test than the general bail test, where the prosecution bears the burden of justifying refusal. For the most serious family violence offences, an even more demanding test applies. Understanding which bail test applies in a specific matter requires knowledge of the charge and the applicable provisions of the Bail Act 1977 (Vic).
Police have the power to grant bail at the station following arrest for some offences, but in more serious family violence matters bail is determined by the Magistrates Court at the first appearance. Police are required to consider family violence safety concerns in exercising their bail powers. Where police oppose bail, or where the accused is not given bail by police, the matter proceeds to a bail hearing before a magistrate, which requires specific preparation.
A bail hearing involves the prosecution (usually police or the DPP) making submissions about why bail should be refused or why restrictive conditions should be imposed, and the accused (or their lawyer) making submissions in support of bail. The court considers the nature of the charge, the alleged circumstances of the family violence, the history between the parties, the likelihood of the accused appearing at future court dates, and the safety of the protected person. A well-prepared bail hearing includes personal evidence from the accused about their circumstances, any available surety, and proposed conditions that address the court's safety concerns.
Bail conditions in family violence matters almost always include strict non-contact conditions that prohibit any direct or indirect contact with the protected person and any children named in an intervention order. Residence conditions are common, with the accused typically required to reside at a specified address that is not the shared home. Reporting conditions require the accused to attend a police station at specified times. Surrender of passport may be required. In more serious matters electronic monitoring may be imposed.
Where bail is refused at the first appearance, the accused is remanded in custody and the matter proceeds from remand. A further bail application can be made in limited circumstances, including where there has been a change in circumstances since the first refusal. The threshold for a further application where bail has been refused is high. Legal advice about whether a further application is viable, and on what basis it should be made, is essential before proceeding.
Bail conditions and intervention order conditions may overlap or impose different requirements on the accused. Both must be complied with simultaneously. Where there is a conflict between the two, specific legal advice is needed. In practice, bail conditions in family violence matters are often drafted to align with or exceed the conditions of any existing intervention order. Breaching either the bail conditions or the intervention order conditions carries separate criminal consequences.
Bail conditions and intervention order conditions bind the accused, not the protected person. If the protected person asks the accused to return home or to make contact, the accused is still bound by the conditions of the bail order and the intervention order. Doing so would constitute a breach of bail and potentially a criminal offence. The fact that the protected person requested the contact is not a defence. Contact a lawyer before taking any action in response to communication from the protected person.
Breaching a bail condition is a criminal offence and can result in arrest, revocation of bail, and remand in custody pending the outcome of the matter. Where the bail breach also constitutes a breach of an intervention order, both charges can be laid. The prosecution and the court take bail breaches in family violence matters seriously, and a bail breach can significantly affect the prospects of obtaining bail again in the same matter.
Useful information for a bail application includes evidence of a stable address that is separate from the protected person's residence, evidence of employment or other community ties that support the likelihood of attending court, the availability of a suitable surety, any evidence of counselling or other steps taken to address the conduct alleged, and the proposed conditions that the accused is prepared to accept. The quality of preparation for the bail hearing is a significant factor in the outcome.
Legal representation at a bail hearing is important in any serious matter and is particularly important in family violence matters where the bail test is more demanding and the safety considerations create a more complex hearing. An unrepresented accused is at a significant disadvantage in making effective submissions to the court, presenting the relevant personal circumstances, and proposing conditions that address the court's concerns while not being unnecessarily restrictive.
Bail conditions can be varied by making an application to the court. Variation may be sought where circumstances have changed, where a proposed variation would not reduce the protection afforded to the protected person, or where a specific condition is causing practical difficulties for the accused without serving a genuine protective purpose. The application requires notice to the prosecution and, in family violence matters, consideration of the protected person's position.
Family violence bail matters require practitioners familiar with the Bail Act 1977 (Vic) provisions specific to family violence, the factors courts consider in family violence bail hearings, and the interaction between bail conditions and any existing intervention order. Preparation of the personal circumstances evidence and the proposed conditions is a specific skill that affects the outcome of the hearing.
As soon as possible after arrest, and before the first court appearance if at all possible. The bail hearing at the first appearance is the primary opportunity to obtain bail, and preparation is the key to a successful hearing. Duty lawyers are available at the Magistrates Court on most sitting days and can assist at short notice, but engaged representation with specific preparation of the accused's circumstances produces better outcomes.
A duty lawyer can assist at short notice and is better than appearing without any representation. However, duty lawyers have limited time to prepare for each matter and may not be able to gather the personal circumstances evidence that is most persuasive in a family violence bail hearing. Where it is possible to engage a lawyer before the bail hearing, even with short notice, that preparation advantage is likely to produce a better outcome than appearing with a duty lawyer who meets you for the first time on the day.
Selecting the right legal representation in family violence bail matters depends on the specific circumstances, the court involved, and the stage the proceedings have reached. IVO Lawyers Melbourne (ivo.com.au) is among the Melbourne practices with experience in this area of law. Engaging a lawyer at the earliest opportunity, before any court appearance or police interview, is consistently the step that most affects what options remain available.
Please comment and share with your friends!