Case example: Bail – Gray v DPP [2008] VSC 4
This is the third blog in our Human Rights Act series, looking at the decision of the Victorian Supreme Court in Gray v DPP regarding bail.
The Queensland Human Rights Act 2019 (HRA) and human rights legislation in other jurisdictions do not expressly contain a right to bail. Rather, the issue of bail is raised through the provisions dealing with the right to liberty, as contained in s 29 HRA (equivalent to s 21 of the Victorian Charter).
| Section | Right |
| s 29(1) | Every person has the right to liberty and security |
| s 29(2) | A person must not be subjected to arbitrary arrest or detention |
| s 29(3) | A person may only be deprived of their liberty in accordance with legal procedures |
| s 29(4) | A person who is arrested or detained must be informed at the time of the arrest/detention of the reason for arrest/detention, and promptly informed of any proceedings to be brought against them |
| s 29(5) | A person who is arrested or detained on a criminal charge must be promptly brought before a court and/or to trial without reasonable delay |
| s 29(6) | A person may not be automatically detained in custody when awaiting trial, but their release may be subject to guarantees to appear for trial or other stages of the judicial proceeding |
| s 29(7) | If a person has been deprived of their liberty by arrest/detention they may apply to the court regarding the lawfulness of their arrest/detention, and the court must make a decision without delay and order the release of the person if detention was unlawful |
| s 29(8) | A person must not be imprisoned only because they cannot perform a contractual obligation |
Case law already indicates that time that a person will spend in custody awaiting the determination of a matter is an important consideration.[1] Where time in custody on remand will likely exceed any sentence of imprisonment imposed after conviction, time may be regarded as outweighing other relevant factors.[2] Human rights legislation is likely to take this argument further.
In Gray v DPP,[3] Kelly Gray was charged with numerous indictable offences, including aggravated burglary arising from assault. He was refused bail on the grounds that a person charged with aggravated burglary is to be remanded in custody unless the person can satisfy the court that detention is not justified.[4] On application to the Supreme Court that his continued detention was not justified, the argument was made that the trial was not likely to commence before 11-12 months after he was initially remanded in custody. Given the relative minor injuries to the victims, the applicant’s prior convictions and the seriousness of the offence, there was a significant risk that Gray would serve more time on remand than under any sentence.[5]
While the Victorian Charter was not explicitly mentioned by either party, Bongiorno J considered that sections 21(5)(c) (the equivalent of s 29(5) HRA – see above) and 25(2)(c) (the equivalent of s 32(2)(c) HRA) to be highly relevant.[6] His Honour found that those sections guaranteed the right to a timely trial, and the inability to provide this was relevant to whether bail should be granted.[7] His Honour stated that:[8]
The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard… is to release him on bail – at least the only remedy short of a permanent stay of proceeding.
Given the similarities between the Victorian Charter and HRA provisions in this regard, it is likely that the same right to a timely trial may be implied in Queensland.
[1] Williamson v DPP [2001] 1 Qd R 99 at 104 per Thomas JA.
[2] Lacey v DPP [2007] QCA 413 at [13].
[3] [2008] VSC 4. See also Human Rights Law Centre, ‘Relevance of Victorian Charter of Rights to Delay in Prosecution and Grant of Bail’, Human Rights Case Summaries (Casenote, 24 January 2008) <https://www.hrlc.org.au/human-rights-case-summaries/gray-v-dpp-2008-vsc-16-january-2008>.
[4] Bail Act 1977 (Vic) s 4(4)(c); Gray v DPP (n 3) [6].
[5] Gray v DPP (n 3) [7]-[8].
[6] Ibid [10]-[11].
[7] Ibid [12].
[8] Ibid [12].