The Treatment of Delay under the Bail Act post-Charter: Is Change Required?

DPP (Cth) v Barbaro [2009] VSCA 26 (3 March 2009) The Victorian Court of Appeal has considered whether the enactment of the Charter necessitates a change to the treatment of delay under the Bail Act 1977 (Vic).


The appellant, Pasquale Barbaro, was remanded in custody in August 2008 on charges relating to drug importation and trafficking.  The charges are within the category of serious offences under s 4(2) of the Bail Act, which requires a court to reject an application for bail unless satisfied that there are exceptional circumstances that justify the grant of bail.

The trial is not expected to be heard until the last quarter of 2010, more than two years after the initial charges, because of the 'complexity of the circumstances out of which the charges against Mr Barbaro arise and ... the scale of evidence ... on which the Crown will need to rely'.

The Magistrates Court dismissed Mr Barbaro's first application for bail on the basis that there was an unacceptable risk of flight.

In a second application, in which Mr Barbaro offered:

  • twice the amount of surety ($2 million) than offered initially;
  • to be electronically monitored; and
  • to be bound by strict conditions (including a curfew, restrictions on travel, and twice daily reporting to a local police station),

the Magistrates Court granted bail, satisfied that, with the additional conditions, the risk of flight was no longer unacceptable.

On appeal to the Supreme Court of Victoria (Trial Division), Forrest J quashed the grant of bail, concluding that the risk of flight was unacceptable notwithstanding the new conditions.

Mr Barbaro appealed to the Court of Appeal.


The Court dismissed the appeal, agreeing that none of the additional conditions of bail removed the 'clearly unacceptable risk' of flight.

At the first bail application, Mr Barbaro argued that the anticipated delay between the charges and the trial had to be taken into account when assessing unacceptable risk, and that the anticipated delay should also be considered in the context of the Charter.

Under s 21(5)(b) of the Charter, a person 'arrested or detained on a criminal charge ... has the right to be brought to trial without unreasonable delay'.  Section 25 entitles a person 'charged with a criminal offence ... to the minimum guarantee ... to be tried without unreasonable delay'.

In the first application, in response to a question from the magistrate about whether the Charter 'really take[s] matters any further than what existed before [the Charter] came into effect', Mr Barbaro's counsel responded:

'No, it just underlines it ... in a fairly decisive sort of way so that it's not really a matter of just paying lip service for delay in accordance with the Charter, it has to be given meaning because it superseded the provisions of the Bail Act.'

Giving reasons for rejecting the application, the magistrate expressly stated that he had taken the Charter into account.

It is not clear from the Court of Appeal's reasons whether the Charter was raised in the second application or on appeal before Forrest J.  Nonetheless, before the Court of Appeal, Mr Barbaro relied on a passage from Bongiorno J's reasons in Gray v DPP [2008] VSC 4, [10] that ss 21 and 25 of the Charter were 'highly relevant to the question of bail'.

Counsel argued that 'the court should view the provisions of the Charter as "informing" the application of the provisions of the Bail Act'; but, in response to a question from the Court, counsel did not contend that the Charter mandated a modification of the pre-Charter approach to assessing delay, as outlined in Mokbel v DPP (No. 3) [2002] VSC 393.  In Mokbel, the court noted that:

'The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being brought before the court in the near future.  The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same in at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay.

As Vincent J said in Medici ... this is not an occasion 'for the court to act as Pontius Pilate by washing its hands of the matter'.  As I have said previously, it is not sufficient to say 'we will wait and see'.  The community will not tolerate the indefinite detention of its citizens with no prospect of charges being tried within a reasonable period.'

The Victorian Attorney-General, who intervened under s 34 of the Charter and drew the Court's attention to 'overseas authorities dealing with cognate human rights guarantees', 'in substance' submitted that the Charter did not require a change to the existing treatment of delay.

The Court agreed, concluding that no departure was required.  Adopting the approach in Mokbel, an actual or anticipated delay may be 'of such a magnitude that risks which would, in other circumstances, be regarded as unacceptable may properly be viewed as acceptable.  ... Whether, and when, the delays in a particular case can be so characterised will depend on the circumstances.'

Application of the Victorian Charter

Although the effect of delay on applications for bail has been considered at least three times previously (see Gray v DPP [2008] VSC 4; Re Kent [2008] VSC 431; and Re Dickson [2008] VSC 516), in this case the Court's reasons refer to Gray only, and only in passing.  The decision leaves a number of questions about the Charter unanswered, including:

  • When are the rights granted under ss21 and 25 triggered?
  • If there is a long delay between charges and trial, against whom should a remedy be sought, and what is the appropriate remedy?
  • Can the presumption against bail under s4(2) be 'interpreted in a way that is compatible' with Charter protected rights, as required by s32(1) of the Charter?

The decision is available at

Zoe Leyland, Human Rights Law Group, Mallesons Stephen Jaques