GROUNDS FOR REFUSAL OF BAIL

The general rule
Exceptions to the presumption in favour of bail

The general rule

Subject to other parts of the Bail Act (i.e. the other provisions in section 4), an accused person being held in custody shall be granted bail:

during any postponement of the hearing of a charge for the offence or while they are awaiting trial (s.4(1)(b)); or
where their case is adjourned by a court for inquiries or a report or while they are awaiting sentence, except where the court is satisfied that it would not be desirable in the public interest to release the accused during this period (s.4(1)(c)).

If an accused person is convicted of an offence and sentenced in the Magistrates' Court and lodges an appeal against conviction and/or sentence (to be heard in the County Court), they may apply for bail in the Magistrates' Court pending the hearing of the appeal. While it depends upon the individual facts of the case, it is common for an accused person to be granted bail on conditions if they have an appeal pending in the County Court, particularly if the person has been on bail and has complied with all bail conditions prior to the hearing of the charges in the Magistrates' Court.

If an accused person is convicted of an offence and sentenced in the Supreme Court or County Court and lodges an appeal against conviction and/or sentence (in the Court of Criminal Appeal), they may apply for bail pending the hearing of the appeal in the Court of Appeal. However, a grant of bail pending an appeal to the Court of Appeal is very uncommon. It will only be granted in very exceptional circumstances. The justification for this is that the verdict of the jury should be regarded as final and not conditional. Accordingly, unless a person is able to demonstrate that they will have served the entirety of their sentence prior to an appeal being heard, or that their appeal will most likely succeed and the conviction will be set aside, they will remain in custody until the appeal is heard.

Exceptions to the presumption in favour of bail

Bail will be refused where the accused:

is charged with certain offences, unless they demonstrate the existence of "exceptional circumstances" justifying the granting of bail;
is in a "show cause" situation; or
poses an "unacceptable risk".

EXCEPTIONAL CIRCUMSTANCES

Charges raising the "exceptional circumstances" reverse onus include the following.

Murder or treason: by virtue of section 4(2)(a) of the Bail Act, section 13 applies. For treason charges, bail can only be granted by the Supreme Court, and the accused must establish "exceptional circumstances" exist which justify bail (s.13(2)(a)). If the charge is murder, bail can only be granted by the Supreme Court, a Judge of the Supreme Court or by the Magistrate who commits the accused for trial, and the accused must again establish "exceptional circumstances" (s.13(2)(b)).
Trafficking in or cultivating a commercial quantity of a drug of dependence under sections 71, 71AA, 72 or 72A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ("DPCSA") or conspiracy under section 79(1): section 4(2)(aa)(i) applies.
Commercial quantity drug trafficking, cultivation or conspiracy in certain cases as listed in section 4(2)(aa)(ia).
Commonwealth narcotics offences under sections 231(1), 233(A) or 233(B) of the Customs Act 1901 (Cth) in relation to a commercial quantity (as defined by reference to section 70(1) of the DPCSA, and not to the Customs Act): section 4(2)(aa)(ii) applies.
Certain Commonwealth terrorism charges and offences involving the death of a person (see section 15AA of the Anti-terrorism Act 2004 (Cth)): the categories of offences to which the section applies are set out in subsection (2).

The phrase "exceptional circumstances" is not defined in the Bail Act. In Tang and Others (1995) 83 A Crim R 593, Justice Beach found that the accused "bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail". "Exceptional circumstances" is not a matter of general definition, but as Justice Vincent stated in R v Moloney (unreported, VSC, 31 October 1990), "[s]uch circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional."

For every case you find in this area, you can safely assume you will find another decided the other way. This is because they are decided on the particular facts of each case, and usually by Judges sitting at first instance. The cases are mostly unreported Supreme Court judgments.

Relevant factors to be considered under "exceptional circumstances" follow.

The onus is a heavy one. Parliament's intention is clearly that persons charged with these types of offences, particularly drug matters, should be denied bail unless they can demonstrate exceptional circumstances. However, the hurdle should not be set so high that it is impossible for an accused person in custody to ever achieve or virtually ever achieve. Bail is not about punishment but about ensuring a person attends court to answer charges.
Delay is only an exceptional circumstance if the delay is out of the ordinary taking into account the usual listing delays: Tang and Others, cited above. (A two-year delay in a drug trafficking case was not exceptional in Mokbel v DPP [2002] VSC 127, but see later Mokbel v DPP (No.3) [2002] VSC 393.) In Peter Alexopoulos (unreported, VSC, 23 February 1998), Justice Hampel referred to 12 months delay, as a rule of thumb, being inordinate. In Gregg Hildebrandt v DPP (unreported, VSC, 31 May 2006) Justice King referred to a period in custody of 2 years and 8 months prior to trial (in onerous conditions) as being a significant factor in granting bail (though the applicant was not required to demonstrate exceptional circumstances). See also the comments of Justice Coldrey in DPP v Cozzi [2005] VSC 195 (8 June 2005).
As a general rule, the strength of the prosecution case is not relevant to an argument for exceptional circumstances: Ian Robert Lesser and Geoffrey Raymond Harris (unreported, VSC). However, in Memery v The Queen [2000] VSC 495 (20 July 2000) the applicant was charged with murder and the weakness of the Crown case, given the reliance placed on self-defence, was relevant to satisfying the court that there were exceptional circumstances. If the applicant does overcome the "exceptional circumstances" hurdle, the strength of the Crown case should be taken into account if the Crown argues that bail should be refused because of unacceptable risk (see: discussion below under "Unacceptable risk").
Financial hardship does not amount to exceptional circumstances (Hanna El Rahi (unreported, VSC, Beach J, 18 January 1996)), even when combined with absence of priors, good work record and supportive family. On the other hand, a combination of factors – such as weakness of the Crown case, availability of employment, health of the applicant or of their dependants, age of the applicant, personal circumstances of the applicant, living situation, educational needs, absence of priors, evidence of good character, appropriate conditions of bail – can amount to exceptional circumstances: Frank Marinucci (unreported, VSC, Teague J, 26 August 1992).
The willingness of an accused to accept the imposition of stringent special conditions to meet the risk of failure to answer bail does not amount to exceptional circumstances. It is only a relevant factor once it has been determined that bail is justified: Michael Sullivan (unreported, VSC, Young CJ, 11 February 1982). However, this factor in combination with others may constitute exceptional circumstances.
Parity may not be relevant, particularly if the co-offenders really ought not to have been granted bail, or if there are distinguishing features between applicants: Stephen Zade Abbott (1997) 97 A Crim R 19. But in other cases the bailing of co-offenders has been considered a relevant factor: Matteo Rosario Medici (unreported, VSC, Ashley J, 27 September 1993). See also Re Wilson (bail application) [2006] VSC 178 (10 May 2006 per Hargrave J).
The need to prepare a defence has been rejected as a relevant factor: Re Majeric (unreported, VSC, 10 July 1998); at other times, it has been accepted as relevant: Re Botha (unreported, QSC, Lee J, 3 April 1998)). It may also be a relevant factor when combined with other factors.
The age or health of the applicant is not relevant of itself: R v Ryan (1961) 78 WN (NSW) 585; but may be relevant in combination with other factors: R v Nadim Ahmad [2003] VSC 209.
The youth of an applicant may be relevant (depending upon the individual facts) in being a factor that in combination with others may amount to "exceptional circumstances" being shown. See Re Wells [2008] VSC 29 (14 February 2008), in which Justice Lasry considered the fact of the applicant’s "relative youth" and lack of prior offending as relevant to the question of demonstrating "exceptional circumstances."
The need for drug rehabilitation and/or treatment would not of itself be exceptional but is a matter that can be taken into account when it is able to be demonstrated that it is necessary, and such treatment is unable to be obtained whilst on remand. See the comments of Hollingworth J in Mae Loc Tran, bail application [2008] VSC 191 (23 May 2008) where the desirability of an accused receiving intensive drug rehabilitation treatment was relevant to showing cause (although the principle applies equally to exceptional circumstances applications.)
Cooperation with authorities is not an exceptional circumstance: Mee Tangjamnat (unreported, VSC, Smith J, 13 December 1991) even when combined with a limited number of other factors. However, it may constitute exceptional circumstances in combination with other factors.
In cases where an accused person has assisted the police, this fact, while not an "exceptional circumstance", would ordinarily be relevant in relation to whether or not the applicant posed an "unacceptable risk".
In recent decisions, attempts have been made to rely upon or incorporate the Charter of Human Rights and Responsibilities Act 2006 (Vic); in particular section 25, which refers to the right of a person accused of a crime to be tried without unreasonable delay and to be released if that does not occur. See Gray v DPP [2008] VSC 4 (16 January 2008), in which Justice Bongiorno makes reference to the Charter and its interaction with the Bail Act. See also His Honour’s comments in Re Unumadu [2007] VSC 258 (23 July 2007).

Even if the applicant overcomes the "exceptional circumstances" hurdle, he or she must then deal with whether or not there is an "unacceptable risk": Beljajev and Anor v DPP and Anor (unreported, VSC, Full Court, 8 August 1991). Where this occurs, the onus shifts back to the Crown to establish unacceptable risk: Beljajev (1998) 101 A Crim R 362. See: "Unacceptable risk", below.

SHOW CAUSE

If the applicant is charged with any of the following offences listed in section 4(4) of the Bail Act, the court shall refuse bail, unless the accused is able to show cause why their detention in custody is not justified:

(a) an indictable offence alleged to have been committed while at large awaiting trial for another indictable offence;

(b) a stalking offence under section 21A of the Crimes Act (Vic); and

prior stalking within preceding 10 years with use or threatened use of violence; or
finding that there was a separate prior occasion, whether found guilty or not, or whether charged or not, with use or threatened use of violence against the person alleged to have been stalked;

(ba) an offence against sections 37 or 123 of the Family Violence Protection Act 2008 (Vic); and

conviction or finding of guilt of an offence in the course of committing which the accused used or threatened to use violence; or
the court is satisfied that on a separate occasion the accused used or threatened to use violence against the person who is the subject of the order, whether or not a conviction or finding of guilt or a criminal charge resulted from that use or threatened use of violence;

(bb) an offence against section 32 of the Stalking Intervention Orders Act 2008 (Vic) of contravening an order in the course of committing which the accused person is alleged to have used or threatened to use violence; and

the accused person has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which he or she used or threatened to use violence against any person; or
the court is satisfied that the accused person on a separate occasion used or threatened to use violence against the person who is the subject of the order, whether or not the accused person has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence; or

(c) aggravated burglary (s.77 Crimes Act (Vic)) or any other indictable offence in the course of committing which the accused or any person acting in concert is alleged to have used or threatened to use a firearm, offensive weapon, or explosive within the meaning of section 77 of the Crimes Act (Vic);

(caa) an offence of arson causing death under section 197A of the Crimes Act (Vic);

(ca) with an offence under section 71AB, 71AC or 72B of the DPCSA or an offence of conspiring to commit any of those offences under section 79(1) of that Act;

(cab) subject to section 4(2)(aa) of the Bail Act, trafficking in a drug of dependence under section 71 of the DPCSA as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 (Vic), or cultivating a narcotic plant under section 72 of that Act, or conspiring to commit either of those offences under section 79(1) of that Act;

(cb) subject to section 4(2)(aa) of the Bail Act, an offence under section 231(1), 233A or 233B(1) of the Customs Act in relation to a commercial or traffickable quantity of narcotic goods within the meaning of the Customs Act); or

(cc) subject to subsection 4(2)(aa) of the Bail Act, with an offence under sections 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code of the Commonwealth; or

(d) an offence against the Bail Act.

The Crown must prove that the bail applicant is in a show cause situation, but once that has been established, the onus shifts to the accused to actually show cause why bail is justified. This onus remains with the accused from start to finish and includes a consideration of the competing risk factors. This is unlike the two-stage approach to the exceptional circumstance threshold, where the onus shifts to the informant once exceptional circumstances have been found to exist (see: Re Asmar [2005] VSC 487 per Maxwell P).

The factors to be considered in "show cause" cases include:

the gravity of the offence: Stephen Nittes (unreported, VSC, Crockett J, 8 November 1985);
the strength of the prosecution case;
whether the applicant has ties to the jurisdiction: David John Pate and Robert Anthony Pate (unreported, VSC, Fullagar J, 10 January 1985);
the antecedents and character of the applicant: Nittes case, cited above; John Denis Maloney, (unreported, VSC, Vincent J, 31 October 1990);
the applicant's history of answering or failing to answer bail (note, however, the shift in onus regarding prior failures to answer bail in section 4(2)(c) of the Bail Act); and
a combination of factors that may provide overwhelming incentive to abscond or answer bail (Nittes case, cited above).

UNACCEPTABLE RISK

Bail must be refused if the court is satisfied (with the onus on the Crown to prove this contention) that there is an "unacceptable risk" that the accused person if released on bail would:

fail to surrender themself into custody in answer to their bail;
commit an offence while on bail;
endanger the safety or welfare of a member of the public; or
interfere with witnesses or otherwise obstruct the course of justice whether in relation to themself or any other person (s.4(2)(d)(i) Bail Act).

"Unacceptable risk" is not defined in the Act. Section 4(3), however, provides a list of some of the factors to be taken into account. They include:

the nature and seriousness of the offence;
the character, antecedents, associations, home environment and background of the accused;
the history of any previous grants of bail to the accused;
the strength of the evidence against the accused; and
the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail.

The question of "unacceptable risk" is balanced against matters in favour of bail, such as delay, ties to the jurisdiction and employment etc. See Gregg Hildebrandt v DPP (unreported, VSC, 31 May 2006) and Mokbel v DPP (No.3) [2002] VSC 393.

OTHER GROUNDS FOR REFUSAL OF BAIL

Other circumstances in which bail will be refused are:

if the applicant is in custody serving a sentence (s.4(2)(b), although note s.4(2A)). Any bail granted must be subject to the condition that the person will not be released on bail before they are entitled to be released under a parole order;
if the applicant is in custody for failing to answer bail, unless they satisfy the court that the failure was due to causes beyond their control (s.4(2)(c)); or
if the court is satisfied (onus on the Crown) that there has not been enough time since the institution of the proceedings against the accused to obtain sufficient information for the purpose of deciding any question referred to in section 4(2) (s.4(2)(d)(iii)).