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Sunday, 26 June 2011

Bail: how not to do it!

Hat-tip to Stephen Warne for this case from an American Professional Responsibility blog, where a judge was reprimanded for ordering a defendant attend church as a condition of bail, and other conduct held to be misconduct.

Here, the primary concern of bail is to ensure an accused person presumed innocent should be permitted remain at liberty so long as they will attend court, and in the interim, will not commit further offences or interfere with witnesses: Burton v The Queen (1974) 3 ACTR 77 at 79; Lim v Gregson [1989] WAR 1 at 16; Application for bail by John Flynn & Stewart Paton, SC V, 21/10/1994; Victorian Law Reform Commission, Review of the Bail Act – Final Report (2007), 29 and 122.

The VLRC wasn't certain if therapeutic programs like CISP or CREDIT were authorised by the Bail Act, and recommended amending the act to clearly allow them. That's yet to happen, but there seems little dispute that bail conditions intended to reduce possible offending while on bail are valid.

However, I haven't heard anyone suggest church attendance will be required under the VLRC recommendations. I daresay it would take more than for a judicial officer to be referred to the previously-proposed judicial commission, but it would probably breach the freedom of religion in s 14 of the Charter of Human Rights, and perhaps freedom of movement in s 12, right to privacy in s 13, freedom of expression in s 15, and freedom of association in s 16.

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