Supreme Court Considers Relevance of Conditions of Detention to Bail

Dale v DPP [2009] VSCA 212 (21 September 2009) In considering whether a former police officer should be granted bail, the Court of Appeal accepted that the circumstances of his custody constituted 'exceptional circumstances' as defined by the Bail Act 1977 (Vic).  Unless the appellant was granted bail, he would likely be remanded into custody for over two years.  While in remand, the appellant was kept in solitary confinement for six months 'for his own protection' not because he was a risk to others.  As a result, he suffered mental illness.


The appellant, a former police officer, was charged with murder and remanded into custody. 

Due to the safety risks posed by the appellant’s status as a former police officer, the appellant was kept in solitary confinement in the Acacia Unit of Barwon Prison from 27 February 2009 to 2 September 2009.  The appellant’s Committal hearing was listed for March 2010 and, if committed, his trial was unlikely to be heard until 2011.

As a result of the conditions of his confinement, the appellant suffered from a 'moderate to severe' mental illness, with symptoms including depression, anxiety, and diminished grasp on reality. 

On 13 March 2009, the appellant applied for bail in the Trial Division of the Supreme Court.  The Bail Act 1977 (Vic) requires that a court reject an application for bail on a murder charge, unless exceptional circumstances exist that justify bail.  Warren CJ refused the application on the basis that she was not satisfied that exceptional circumstances existed.

A fresh application was made on 6 August 2009.  On this occasion, Byrne J found that delay and the conditions of the appellant's detention were exceptional circumstances, but not such as to justify a grant of bail.  His Honour held that the appellant was also required by s 4(2)(d) of the Act to demonstrate that there was no unacceptable risk associated with the granting of bail and that the applicant had failed to do so. Mr Dale appealed to the Court of Appeal.


Byrne J's decision was reversed by the Court of Appeal, and the appellant was granted bail conditional on compliance with the Court's other orders.

The Court of Appeal held that Byrne J misconstrued the relevant sections of the Bail Act.  The Court of Appeal found that the Bail Act imposed a two stage enquiry.  First, the appellant must establish exceptional circumstances which justify the grant of bail.  The onus then shifts to the Crown to demonstrate that there is an unacceptable risk warranting the refusal of the application.

Exceptional circumstances

Mr Dale's counsel argued that the likely delay before his trial, the conditions of his imprisonment and the financial hardship caused to himself and his family, combined to create exceptional circumstances justifying the granting of bail.  The Court placed particular emphasis on the conditions of his imprisonment and their relationship with the deterioration in his mental health, noting that ‘what makes [the delay] much more significant, however, is that the conditions in which the appellant was imprisoned following his arrest in February have severely affected his mental health’.

The Court opined that once a prison identifies risk of significant psychological harm, it must take great care to prevent harm from eventuating.  Repressive conditions should only be maintained if there is a 'compelling need' for them.

The Court approved Byrne J's finding that the heavily onerous conditions imposed on the appellant were 'entirely unrelated to the appellant's protection', and that particular care must be taken in the treatment of unconvicted members of society who:

must be provided with accommodation which suits the requirements of their detention... [because] unlike a sentenced prisoner, they are not undergoing punishment.  It is for this reason not appropriate that they be detained with prisoners undergoing sentence.

Without determining the matter, the Court of Appeal questioned ‘whether such treatment can be reconciled with the requirement under s 22(1) of the Charter of Human Rights Act and Responsibilities Act 2006 (Vic), that “all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person”’. 

Finally, the Court considered that the risk of the loss of the appellant's business and family home as a result of his incarceration was of 'substantial significance' in reaching the conclusion that exceptional circumstances existed.

Unacceptable risk

Finally, the Court of Appeal considered whether there was an unacceptable risk in granting bail.  The Court looked at the relevant matters including the appellant's past behaviour, the potential for the appellant to contact Crown witnesses and the strength of the case against him.  The Court was not satisfied the Crown had established that the appellant posed an unacceptable risk if bail was granted.

The decision is available at

Bryan Wee is a lawyer with DLA Phillips Fox