Supreme Court of Victoria grants bail to "victims of the delay caused by the COVID-19 pandemic”

[2021] VSC 148 (13 April 2021)

Summary

On 29 March 2021, the Supreme Court of Victoria granted bail to a man charged with drug offences on the basis that he would likely be held in custody for three years before he was tried, and because there was immediate availability in a residential rehabilitation centre. The Court referred to the man as a potential “victim” of very lengthy delays in court processes due to COVID-19. The Court emphasised the importance of rehabilitation in addressing the root causes of offending and thereby reducing the likelihood of reoffending and, in turn, keeping the community safer. Ultimately, the Court found that the length of pre-trial custody coupled with the availability of appropriate rehabilitation options amounted to 'exceptional circumstances' sufficient to justify bail.    

Background

The applicant, Lai Jiang, was arrested on 22 January 2019 on a number of drug related offences (referred to in the judgment as 'the Reynolds charges'). The applicant was granted bail in respect of these charges subject to a surety of $50,000 and conditions including twice-weekly urine testing.

On 9 January 2020, the applicant was arrested for breaching his bail conditions as he returned positive results on his urine test and failed to attend urine analysis. He pleaded guilty to one charge of contravening a condition of his bail.

While the applicant was still on bail, on 16 April 2020, a search warrant was executed at the applicant's home and the applicant was consequently arrested and charged with a number of other drug offences and committing an indictable offence whilst on bail (referred to in the judgment as 'the Owen charges'). The applicant was remanded in custody and the bail granted in respect of the Reynolds charges was later revoked. 

This decision determines an application for bail made in respect of both the Owen and Reynolds charges.

Counsel for the applicant argued that bail should be granted as otherwise the applicant would likely be detained in custody on remand for approximately three years by the time he reached trial due to court delays caused by COVID-19. While the applicant would face a significant term of imprisonment should the Reynolds charges be proved, the amount of time spent on remand prior to trial would be significant. Further, counsel for the applicant argued that the applicant's time in custody has been made more onerous as a result of COVID-19.

Counsel for the applicant acknowledged that the applicant had a history of drug addiction and put forth evidence that the applicant meets the DSM-5 criteria for substance use disorder. Counsel proposed that the applicant could engage in residential drug rehabilitation treatment to address his addiction.

The prosecution's key argument in opposing bail was that the applicant's criminal history suggests that he poses an unacceptable risk of failing to comply with bail conditions and is likely to engage in further substance-related offending such that no appropriate bail conditions could be imposed that would reduce risk to an acceptable level.

Decision

Justice Lasry noted that as the applicant is charged with a Schedule 1 offence (as set out in the Bail Act 1977 (Vic)), he must refuse bail unless he can establish that 'exceptional circumstances' justify the grant of bail. If satisfied that 'exceptional circumstances' exist, his Honour must then apply the 'unacceptable risk test' that requires him to refuse bail if the prosecution establishes that there is an unacceptable risk.

Justice Lasry held that a period of pre-trial custody of three years would demonstrate ‘exceptional circumstances’ in “almost every case,” even though in this case the period of imprisonment on a finding of guilt may exceed the anticipated time on remand.

Justice Lasry found the availability of residential rehabilitation significantly weighed in the applicant’s favour. The applicant’s substance use disorder is central to his offending, and as residential rehabilitation could successfully treat the applicant’s addiction it could, in turn, reduce the chance of further offending. Residential rehabilitation was described by Justice Lasry as having “the twin benefit” of rehabilitating the applicant and protecting the community from the applicant engaging in future drug-related offending.

The Court was satisfied that the length of the likely remand period, in combination with the availability of residential rehabilitation, amounted to 'exceptional circumstances' justifying bail being granted. The Court found that any 'unacceptable risk' could be mitigated to an acceptable level by imposing conditions of bail that require the applicant to receive treatment in a full time residential drug rehabilitation facility.

The Court ordered that the applicant be granted bail from 30 March 2021 upon his own undertaking with a surety in the amount of $50,000. Relevantly, bail was granted on conditions that the applicant attend and remain at the residential rehabilitation facility, not use any drugs or alcohol and that bail conditions be reviewed again by the Court once the applicant's treatment program concluded.

Commentary

Justice Lasry referred to the applicant, and a large number of others, as “victims of the delay caused by the COVID-19 pandemic.” This decision highlights the Court's unwillingness to detain people in custody for excessive periods of time where there is not yet a trial date listed or a finding of guilt.

This position is consistent with the presumption of innocence arising from article 14(2) of the International Covenant on Civil and Political Rights that has been adopted in Australia, and also section 1B(1)(b) of the Bail Act 1977 (NSW), which the Victorian Supreme Court considered as a guiding principle. This section requires that the Court must take into account “the presumption of innocence and the right to liberty”.

This decision also highlights the importance of ensuring availability of places in residential rehabilitation for people with a history of substance addiction to ensure that these individuals receive treatment to address the root causes of their offending and, in doing so, reduce the risk that drug related offending poses to the community.

Read the full case here.