R v Daniel

Introduction (463)

This is a written bail submission on behalf of the accused – ‘Daniel’. Daniel is a 24-year-old male
who is a professional Australian Football League (AFL) player by occupation. Daniel has been married
to Wendy for three years with two-year-old twins. Daniel suffers from periodic depression, drug
addiction, and gambling addiction.

Currently, Daniel has been on bail for three months on charges of striking a cyclist with a motor
vehicle. The conditions of this bail agreement are unknown. Daniel has been previously convicted of
burglary two years ago and causing injury to a previous partner (Vera) four years ago.

The charge for bailment is for the offence of intentionally causing serious injury under s 16 of the
Crimes Act 1958 (Vic) on 1st February 2017.1 Police have charged Daniel for repeatedly punching
Wendy within the Chadstone Shopping Centre in the presence of a witness.

Police have issued opposition to bail being granted on the grounds of this matter constituting a show
cause offence. Police have raised that unacceptable risk is also present in this matter.

Despite the position of the police, Daniel should be granted bail as detention is not justified based
on:

i. Weak prosecution with reliance on one witness and victim not wishing to press charges;
ii. Potential for assault in custody;
iii. Dependents as sole income for family unit;
iv. Necessary liberty for employment requirements and security;
v. Previous criminal and bail history are not currently reliable indicators for materialising
risks of granting bail;
vi. Medical conditions which will be worsened with detention;
vii. Liberty to access confirmed medical treatments which cannot be accessed in detention.

Regarding the grounds of the police, unacceptable risk is unfounded as;

i. Accused will not be able to abscond due to medical treatment and employment
commitments;
ii. Risk of committing another offence will be downgraded by the medical treatment
addressing underlying causes of past offences;
iii. Risk of injury in custody outweighs risk the accused poses to the community;
iv. Prosecution cannot establish the accused will interfere with witnesses or victims as the
victim for this matter is the accused’s partner;
v. Accused is willing to accept reasonable conditions imposed on this bail.

1
Crimes Act 1958 (Vic) s 16

16 Causing serious injury intentionally A person who, without lawful excuse, intentionally causes
serious injury to another person is guilty of an indictable offence. Penalty: Level 3 imprisonment (20
years maximum).
I will begin by addressing the treatment of the legislation relevant to this matter. I will subsequently
establish the issues of show cause and unacceptable risk by addressing their respective legal tests
inclusive of legislation and case law. After providing background, I will apply the legal principles and
substantiate why bail is justified. This will be done by addressing the legal basis for each of the
different show causes followed by a discussion of why unacceptable risk is unfounded. Lastly, I will
predictively counter the arguments of the prosecution against bail. The conclusion will provide a
short summary of the bail application.

Background (844)

Bail Act 1977 s 4(4)

Daniel has been charged with this indictable offence whilst on bail awaiting trial for another
indictable offence regarding striking a cyclist with a motor vehicle. This matter satisfies the
legislative requirements for a show cause offence.2 Thereby, Daniel has automatically obtained the
burden of proof to demonstrate or ‘show cause’ as to why bail is unjustified.

Show Cause

This application will be structured on the ‘one-step’ process of showing cause rather than the
traditional ‘two-step’ process. This is so as then the application can address both the show cause
elements as well as the unacceptable risk factors.

The ‘two-step’ process requires the accused to first hold the burden of proof as they address the
show cause and then secondly, the burden of proof shifts to the prosecution to establish
unacceptable risk.

To begin with, those judges who favour the ‘two-step’ approach argue that although cause can be
demonstrated as to why bail may not be justified, it is the responsibility of the Crown to ensure
justice proceeds unhindered, recidivism is limited, and the public is safe.3 The main authority on
leaning toward the ‘two-step’ process is DPP v Harika which argued that although there could be
overlap between showing cause and defending the elements of unacceptable risk, this process
allows for the court to weigh the two against each other instead of simply considering why bail
should be granted.4

The limitations of the ‘two-step’ process rest with the second step – Crown proving unacceptable
risk. This step is seemingly unnecessary because bail starts as a right for every accused to access but
the Crown must establish why the accused should not be granted bail. Here, unacceptable risk has
already been addressed. In this case, the accused would then perform the first step by responding
with cause as to why bail is justified. For the Crown to be given a second opportunity to establish
unacceptable risk gives the accused no chance to respond nor does this process allow the burden of
proof to shift back to the accused.

Hence, some cases have simply included addressing why unacceptable risk is not applicable when
showing cause – known as the ‘one-step’ process. The leading case to do so was Re Fred Joseph

2
Bail Act 1977 (Vic) s 4(4)(a)
3
DPP v Jason Ghiller [2000] VSC 435 at [43] Eames J
4
[2001] VSC 237 {MC11/01} at [41] & [44]-[48] Gillard J
Asmar where Maxwell P asserted the legislature of showing cause and establish unacceptable risk
both asked the same question, hence there only existed one line of inquiry.5 This is the question of
whether bail is justified. The Bail Act 1977 (Vic) unfortunately asks this question in three different
ways, further complicating the bail process.6 However, when looking at an application in full, rather
than in parts, show cause has a stronger chance of being granted.

So therefore, in the interests of an efficient legal process, this bail application will adopt the ‘one-
step’ process from Re Fred Joseph Asmar and simply address for this matter why the accused, Daniel,
satisfies justification for bail.

Bail Act 1977 s 4(2)(d)(i)

The Police have argued that bail should be refused on the basis of unacceptable risk. Legislation
considers unacceptable risk to manifest if an accused on bail absconds court, commits another
offence, endangers the public, or obstructs the course of justice in relation to themselves or others.7

Daniel has committed another offence on bail – however – this is a matter for the bail regarding the
cyclist incident and not this matter. Therefore, the courts should look to the facts of the matter at
hand and not base their bail decision on presumptions of another previous bail decision.8

Unacceptable Risk

When considering risk, the court should be aware that every granting of bail comes with some ratio
of risk.9 However, the threshold for risk must be high enough to reasonably disallow the accused
liberty. This can be calculated in various ways. One way is to see the risks on face value which may
constitute as unacceptable at first but with the inclusion of conditions of bail, these risks could
become acceptable.10 For example, the accused may have the risk of absconding, but the conditions
of bail may include the termination of a passport and drivers licence. It is on this basis which the
accused will be opposing the argument of unacceptable risk.

Other influences on whether the risk is acceptable are the practicability of the accused enacting
what the legislature considers risk. This argues for a more realistic approach to risk rather than a
consideration of abstract and predictive possibilities.11 Factors may include time, income, physical
and mental capability, moral and religious obligations, or parenting responsibilities. As stated earlier,
the show cause justification of the bail application will be apparently similar to the unacceptable risk
defence.

Substantiation and Analysis – Show Cause

Weak Prosecution

5
[2005] VSC 487 [10]-[17]
6
(Vic) s 4(2)(d)(i), 4(3), 4(4)
7
Bail Act 1977 (Vic) s 4(2)(d)(i)
8
DPP v Haidy [2004] VSC 247 at [16] Redlich J
9
Williamson v DPP (Qld) [1999] QCA 356 at [21] per Thomas J.
10
MacBain v DPP [2002] VSC 321 at [17] per Nettle J
11
Woods v DPP [2014] VSC 1 at [25] per Bell J; Fred Joseph Asmar [2005] VSC 487 at [25] per Maxwell P.
The alleged offence took place in a large and frequented shopping centre and yet the prosecution is
relying on one witness. If the prosecution wished to strengthen their case, they would need to
interview all witnesses which could amount to many interviews. This could add length to the time
between custody and trial which may outweigh the refusal for bail. It has been held that the law
cannot truly be predictive, and to base this prediction on the account of one individual concedes
considerable doubt as to the severity and events which this bail application is regarding.

The prosecution has also failed to weigh in the effects of Daniel’s drug addiction. The medical
profession states that prolonged use of ice or high doses can cause what is an ‘ice psychosis’.
Symptoms include paranoia, hallucinations and bizarre or violent behaviour. Similar symptoms may
occur when ‘coming down’ from the drug. There is a strong probability Daniel may have been
experiencing either a psychosis or ‘coming down’ period from the drug. In the interests of Daniel’s
health and the safety of the public, bail should be granted to allow the accused to access
rehabilitation supplied by their employer.

Potential for assault in custody

The applicant’s partner has identified a serious risk of injury toward the accused if placed in
detention. The risk is at the hand of the partner’s brother who is currently in jail. The partner has
indicated that there is a serious probability their brother and/or another member of the motorcycle
club the brother is a member of, will assault the accused. The threat to the safety of the accused in
detention is thereby greater than the threat the accused poses to the public.

Dependents as sole income earner for family unit

Daniel is a professional AFL player by occupation with no history of qualifications or past

employment. Daniel’s partner is not employed. They have two dependent children who are both
two years of age. Daniel’s ability to provide an income is crucial to the security of his family. There
have been no apparent indications of other relatives or friends offering to the courts to provide for
Daniel’s dependents. Daniel has reported that he may lose his employment if the courts refuse this
bail application. In the interests of his family’s stability, bail should be granted so not to add further
stressors on top of their current issues.

Necessary liberty for employment requirements and security

If Daniel is not allowed on bail, he cannot perform his employment duties and therefore, cannot
provide for his family. Daniel’s employment depends on his ongoing participation in the sport of AFL
as well as maintaining a professional level of fitness and health. Daniel would not be able to
undertake either of these if he is detained. Daniel’s employment is also dependent upon a team of
players and Daniel will need to be readily accessible to participate, learn and practice the plays and
tactics of his respective team. The applicant’s capability of doing so in detention would be
impossible.

Previous criminal and bail history are not currently reliable indicators for materialising risks of
granting bail
The accused’s criminal history consists of one convicted burglary two years ago and causing injury to
an ex-partner four years ago. Despite this, the convictions, the recent bail and this matter in
conjunction with mental illness indicates that what is underlying the criminality of the accused are
long-term mental health issues which have gone untreated.

Bail should be granted in the interest of rehabilitating the accused to prevent further reoffending as
detention has a stronger possibility of heightening the criminality of the accused. The prosecution
has neglected to release the conditions for the bail granted for striking a cyclist. However, more
restrictive bail conditions can be imposed with this matter alongside medical treatment to ensure
Daniel is least likely to reoffend.

Medical conditions which will be worsened with detention

Daniel suffers from several mental illnesses and addictions. Some of these are life-threatening such
as the ice-use and depression. Detoxification from ice requires substantial medical treatment as
failure to adequately and safely ween an addict from ice has potentials of seizure, psychosis,
inhibition, and significant pain. This could last from a week to a month.

The applicant has a psychologist report which prescribes bail should be granted. The court should be
aware that if bail is refused and Daniel’s health worsens as the report indicates, this would
constitute grounds for appeal. However, the cost of reaching an appeal stage is Daniel’s long-term
health.

Liberty to access confirmed medical treatments which cannot be accessed in detention

There is the strong possibility that Daniel may not receive the same level of treatment and drug
education in detention compared to what has been made available through the accused’s
employment. Daniel having holistic treatment for his mental health issues means there is a greater
chance of not reoffending and not becoming a harm to himself or others.

Substantiation and Analysis – Unacceptable Risk

Accused will not be able to abscond due to medical treatment and employment commitments

Within two weeks, Daniel will be placed in a pre-booked rehabilitation centre provided by his
employer. Both participating in treatment and returning to employment are significant motivators
for the accused not to abscond. This is because Daniel has indicated detention and in essence,
absconding would cause him to lose his employment. Consequences of absconding could also risk
Daniel’s public image as a professional sportsperson.

Risk of committing another offence will be downgraded by the medical treatment addressing
underlying causes of past offences

If the prosecution’s method of retributive justice was effective in deterring Daniel’s criminal
behaviour, then this matter would not have occurred. Therefore, the court should look to a
restorative justice approach to ensuring the applicant does not reoffend. With rehabilitation,
absence of drug use, and mental health treatment, the accused may be able to ascertain less
desirability to reoffend. This would particularly be a product of not using a drug that has the side
effects of paranoia and aggressiveness. Daniel would be clean, level-headed and able to make
rational decisions. He would also be able to face his charges without the prejudice of having spent
the time awaiting trial in detention after losing his job.

Risk of injury in custody outweighs risk the accused poses to the community

The applicant’s partner has indicated her brother in prison or a fellow gang member of his are most
likely to assault Daniel if he is detained. The extent of the injuries and possibility of this actualising
are unknown but significant enough to cause concern for Daniel’s overall safety. Detention can also
pose as other risks to Daniel. One is the worsening of his current mental health issues. Another is the
more concentrated access to drug trafficking contacts in detention which within the community is
limited to Daniel’s supply network. On the balance of probabilities, Daniel poses less of a risk to the
community than detention does to Daniel.

Prosecution cannot establish the accused will interfere with witnesses or victims as the victim for this
matter is the accused’s partner

The element of unacceptable risk is weakly applicable at best in this matter. The accused’s partner is
the victim and the court cannot reasonably order Daniel to not speak to his partner whom they
share children.

Accused is willing to accept reasonable conditions imposed on this bail

Aside from the accused own undertaking to appear at court, the following conduct conditions can be
imposed;

a. Reporting to a police station (not inclusive of any inpatient rehabilitation);

b. Surrender of licence or to not drive a motor vehicle (considering current bail conditions from
previous offence);
c. Regularly attend psychiatric sessions consisting of following a treatment plan open to
medication, counselling, and other therapies;
d. Drug testing;
e. Any others the court or medical professionals consider appropriate.

These conditions are in the interest of reducing the likelihood of the applicant committing further
offences on bail as well as a rehabilitative approach to reforming the applicant’s criminal behaviour.
Currently, neither party is aware of the applicant’s financial circumstances and so the court should
stray from imposing a surety.

Conclusion

The bail application began with an introduction of the facts. This was followed by a determination of
the ‘one-step’ show cause approach, its distinction from unacceptable risk, and establishing relevant
factors relating to unacceptable risk. This was succeeded by showing cause as to why the applicant
should receive bail and why detention is not justified. The application concluded by countering the
elements of unacceptable risk in this matter.

Upon the determinations of this application, the accused, Daniel, should be granted bail.