Awaiting Court Hearing
| Author | Joseph Martin |
| DOI | 10.1177/000486587200500203 |
| Published date | 01 June 1972 |
| Date | 01 June 1972 |
72 AUST. &. N.Z.
JO;URNAL
OF CRIMINOLOGY (June, 1972): 5, 2
Awaiting Court Hearing
AFollow-up
Study
on Those
Who
W,ere Awaiting
Court Hearing
in
Victorian Prisons
on the Night
of
17-18 Uctober, 1970
JOSEPH
MARTIN*
THE
Victorian
Justices
Act 1958
states
that
a
justice"
...
may
admit
any
person to bail (unless
such
a
person
is
charged
with
treason
or
with
a
capital
offence to
which
he
has
pleaded
guilty)".
In
other
cases
it
could be
said
that
magistrates
and
[udges
are
faced
with
adilemma. On
the
one
hand,
there
is
the
principle
that
aperson is
presumed
innocent
and
therefore
has
a
right
to freedom
until
he
has
been
found
guilty of a crime; While, on
the
other
hand,
the
public
has
the
right
to
demand
protection
from
crime.
The
onus
is
said
to
rest
with
the
prosecution to
show
why
the
accused
should
not
be released on bail.
The
court
needs to be
satisned
by
the
prosecution
that
there
is a
reasonable
degree of
risk
that
the
accused will
avoid justice,
either
by
not
appearing
on
his
trial,
or by
tampering
with
or
intimidating
Crown witnesses.
The
prosecution will
draw
the
court's
atten-
tion
to
such
matters
as
the
previous record of offences of
the
accused,
past
non-response
to bail
and
temptation
to leave
the
state
or
the
country.
Another
major
consideration is
whether
the
accused is likely to
commit
offences
during
the
period of bail -
perhaps
merely to
pay
for
his
defence.
More
particularly,
known
housebreakers
appear
to be
suspect
on
these
grounds.
In
the
case of indictable offences
there
are
also some
other
considera-
tions
which
the
courts
may
take
into
account. Among
these
are
such
matters
as
the
strength
of
the
evidence
against
the
accused -
that
is,
his
prospects
of successful defence;
the
type
and
length
of
sentence
the
accused would
receive if
he
is
found
guilty;
the
possibility
that
freedom would help
him
to
prepare
his
defence more
particularly
in complicated
fraud
cases,
where
a
mass
of
documents
may
have
to be examined;
the
fact
that
refusal
of
bail
would
endanger
his
employment
if
found
not
guilty, or if he receives a
sentence
that
would
not
involve
detention;
the
likelihood of
undue
delay
in
hearing
the
case owing to
the
slowness of
the
preparation
of
the
prose-
cution
case; or
the
congestion of cases
in
the
courts,
and
so on-.
Whether
an
accused
person
should
either
be released on bail,
with
or
without
collateral
surety, or be
kept
in
custody
until
his
case is
heard,
is
not
only
the
subject
of public discussion,
but
also
under
review by
the
*B.Com. (Melb.), Director of Research and Statistics, Social Welfare Department,
Victoria.
1
For
acomprehensive review of the
practices
of the courts as
regards
the
granting
of bail
the
reader
can
refer
to Douglas Brown, Bail: An Examination, The
Australian
Law Journal, Vol. 45,
April 1971.
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