Relevance of Victorian Charter of Rights to Delay in Prosecution and Grant of Bail

Gray v DPP [2008] VSC 4 (16 January 2008) In the first decision to substantively consider the Victorian Charter of Human Rights since it became justiciable on 1 January 2008, Bongiorno J has held that the Charter guarantees the right to a timely trial and that the appropriate remedies for failure of the Crown to provide such a trial are release of the accused on bail or, alternatively, a permanent stay of proceedings.


The accused, Kelly Gray, was charged with a number of indictable offences, including aggravated burglary, arising from an assault on 4 November 2007.  He was remanded in custody and refused bail by a magistrate on 10 December 2007 pursuant to s 4(4)(c) of the Bail Act, which relevantly provides that a person charged with aggravated burglary is to be remanded in custody unless that person can satisfy the court that detention is not justified.

Gray subsequently applied for bail in the Supreme Court, arguing that his continued detention was not justified, particularly given that the trial was unlikely to commence before October or November 2008 and unlikely to conclude before the end of 2008.  It was submitted that having regard to the seriousness of the offence, the relatively minor injuries suffered by the victim, and the applicant’s prior convictions, there was a real risk that the applicant could serve more time on remand than he would serve under any subsequent sentence.


Although neither party mentioned the Charter in their submissions, Bongiorno J considered various of its provisions to be ‘highly relevant to the question of bail’, including in particular s 21(5)(c) (which provides that a person detained on a criminal charge has the right to be promptly brought before the court and tried without unreasonable delay, failing which they are to be released) and s 25(2)(c) (which provides that a person charged with a criminal offence is entitled to be tried without unreasonable delay).

Considering the application of the Charter to the present case, His Honour made a number of important observations:

  1. Sections 21(5)(c) and 25(2)(c) of the Charter guarantee the right to a timely trial (ie, ‘a trial held within a reasonable time’).
  2. The inability of the Crown to provide a timely trial is relevant to the question of bail.
  3. A trial which may not be held until after the accused has spent more time on remand than he or she is likely to serve upon sentence is very unlikely to be a timely trial.
  4. The remedies available to the Court to address failure by the Crown to ensure a timely trial include releasing the applicant on bail or, alternatively, a permanent stay of proceedings.

Having regard to these factors, among others, Bongiorno J concluded that the applicant’s continued incarceration was not justified and that he should be released on bail.

The decision is available at

Phil Lynch is Director of the Human Rights Law Resource Centre