Bail may be refused if there is an ‘unacceptable risk’ of certain behaviours. There is no assumption that bail will be granted to an accused person awaiting trial if that person has committed either an ‘exceptional circumstances’ offence or a ‘show cause’ offence.
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:
• when the hearing of a charge is postponed or while they are awaiting trial (s 4(1)(b)); or
• when 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)).
However, the accused must be refused bail if there is an “unacceptable risk” that, if granted bail, they will fail to appear, commit an offence, endanger someone’s safety or welfare or obstruct the course of justice (s 4(2)(d)). The onus is on the prosecution to establish unacceptable risk (see R v Paterson  VSC 268).
The presumption in favour of bail does not apply where the accused is charged with certain serious offences. There are two categories of such offences: “exceptional circumstances” offences and “show cause” offences. An accused charged with such an offence will be refused bail unless they can establish “exceptional circumstances” that justify bail, or “show cause” why their detention is not justified. The principles are summarised by Justice Bell in Woods v DPP  VSC 1.
An accused who is charged with certain serious offences must establish “exceptional circumstances” in order to be bailed. These charges include:
• murder or treason (see ss 4(2)(a), 13 Bail Act): for treason charges, bail can only be granted by the Supreme Court (s 13(2)(a)). If the charge is murder, bail can only be granted by the Supreme Court or by the magistrate who commits the accused for trial (s 13(2)(b)). In either case, the accused must establish “exceptional circumstances”;
• trafficking in or cultivating a commercial (or large 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 to commit any of these offences (s 4(2)(aa)(i) Bail Act);
• Commonwealth drug importation and exportation offences under sections 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code Act 1995 (Cth) in relation to a commercial quantity – as defined by section 70(1) of the DPCSA) (s 4(2)(aa)(iii) Bail Act);
• certain Commonwealth terrorism charges and offences involving the death of a person (see s 15AA Crimes Act 1914 (Cth));
• certain Victorian terrorism charges and offences, including providing documents or information facilitating terrorist acts (s 4B(1) Terrorism (Community Protection) Act 2003 (Vic)), and obstructing or hindering a police officer who is exercising their power to search, or exercising other special powers (s 21W);
• certain historical Victorian and Commonwealth drug trafficking offences.
The phrase “exceptional circumstances” is not defined in the Bail Act. In Tang (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), “such 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 in this area, there will be 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.
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 achieve (see e.g. Re Pickersgill  VSC 715). Bail is not about punishment but about ensuring a person attends court to answer charges.
Relevant factors to be considered under exceptional circumstances include:
• Delay is only an exceptional circumstance if the delay is out of the ordinary, taking into account the usual listing delays (see Tang, cited above). (A two-year delay in a drug trafficking case was not exceptional in Mokbel v Director of Public Prosecutions  VSC 127, but see later Mokbel v Director of Public Prosecutions (No 3)  VSC 393.) In Alexopoulos (unreported, VSC, 23 February 1998), Justice Hampel referred to 12 months delay, as a rule of thumb, being inordinate. In Hildebrandt v DPP  VSC 198, Justice King referred to a period in custody of two years and eight 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). Justice Lasry in Re Marijancevic  VSC 122 (8 April 2010) held that a period in custody between arrest and trial of 22 months was in itself an exceptional circumstance. See also the comments of Justice Coldrey in DPP v Cozzi  VSC 195 (8 June 2005). Delay may also be a significant factor if the time spent on remand is likely to exceed the total effective sentence or the non-parole period (see Cao v DPP  VSC 198). See also Lennon  VSC 239, which considered the extent of any sentence that would be served before the application for leave to appeal, or the appeal itself, could be heard.
• Strength of the Crown case where it may be assessed (DPP (Vic) v Cozzi  VSC 195). See discussion below under “Unacceptable risk”.
• Financial hardship caused by detention is a relevant factor (Dale v DPP  VSCA 212). In El Rahi (unreported, VSC, Beach J, 18 January 1996), financial hardship did not amount to exceptional circumstances, 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 (see Re Marinucci (bail application)  VicSC 373).
• 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 (see Sullivan (unreported, VSC, Young CJ, 11 February 1982)). However, this factor in combination with others may constitute exceptional circumstances.
• Parity (i.e. that co-offenders had been granted bail) may be relevant “but it must be established that things are equal as between the co-offenders” (see Re Abbott (bail application)  VicSC 497; Re Wilson (bail application)  VSC 178). This will be rare (ibid). Further, parity cannot be used to obtain bail where the decision to grant bail to the co-offenders was “manifestly wrong” (ibid).
• The need to prepare a defence has been rejected as a relevant factor (see Re Majeric (unreported, VSC, 10 July 1998)); at other times, it has been accepted as relevant (see Re Botha  QSC 152). It may also be a relevant factor when combined with other factors.
• The age or health of the applicant is not relevant of itself (see R v Ryan (1961) 78 WN (NSW) 585), but may be relevant in combination with other factors (see R v Ahmad  VSC 209).
• The youth of an applicant (depending upon the individual facts) may be a relevant factor that, in combination with others, may amount to “exceptional circumstances” being shown. See Re Wells  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. However, it 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 while on remand. See the comments of Justice Hollingworth in Tran (bail application)  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. Cooperation will also ordinarily be relevant in relation to whether or not the applicant poses an “unacceptable risk”.
Even if the applicant overcomes the “exceptional circumstances” hurdle, they must then deal with the issue of “unacceptable risk” (see Director of Public Prosecutions (DPP) v Beljajev, Kunz & Pinhassovitch  VicSC 172). Where this occurs, the onus shifts back to the Crown to establish unacceptable risk (see Beljajev v Director of Public Prosecutions [DPP]  VicSC 224). See “Unacceptable risk”.
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;
ab with a “serious offence” (defined in s 3(1) Sentencing Act) and the accused, as an adult, has within the preceding five years been convicted or found guilty of failing to answer bail;
b a stalking offence under section 21A of the Crimes Act (Vic); and
i within the last 10 years the accused has been convicted or found guilty of stalking with use or threatened use of violence; or
ii the court is satisfied that on a separate occasion the accused used or threatened violence against the complainant, even if the accused was not charged, or found guilty in relation to that occasion;
ba contraventions of family violence safety notice or intervention order contrary to sections 37, 37A, 123, 123A or 125A of the Family Violence Protection Act 2008 (Vic); and
i within the last 10 years the accused has been convicted or found guilty of an offence in the course of committing which the accused used or threatened to use violence; or
ii 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 contravention of a personal safety intervention order contrary to section 100 of the Personal Safety Intervention Orders Act 2010 (Vic), in the course of committing which the accused person is alleged to have used or threatened to use violence; and
i the accused person has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which they used or threatened to use violence against any person; or
ii 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
bc home invasion, aggravated home invasion, and aggravated carjacking;
c aggravated burglary (s 77 Crimes Act (Vic)), home invasion, aggravated home invasion, aggravated carjacking, or any other indictable offence in the course of committing which the accused (or any person involved in the commission of the offence) 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 cultivation or trafficking offence under section 71AB, 71AC or 72B of the DPCSA, or an offence of conspiring to commit any of these offences;
caband cb certain historical Victorian and Commonwealth drug trafficking offences;
cc Commonwealth drug importation and exportation offences under sections 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code Act 1995 (Cth) in relation to a quantity that is less than commercial quantity (as defined by reference to section 70(1) of the DPCSA);
cd an indictable offence alleged to have been committed while an accused was the subject of a supervision order or interim supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic);
ce an indictable offence, and the accused, at any time during the proceeding with respect to bail, is the subject of a supervision order or interim supervision order;
d an offence against the Bail Act.
The Crown must prove that the bail applicant’s situation falls into one or more of the “show cause” categories. However, once that has been established, the onus shifts to the accused to actually show cause why bail is justified. There is a divergence of authority on whether the question of unjustifiable risk falls to be determined as part of showing cause or whether, like with exceptional circumstances, it is an additional matter that needs to be determined if the accused successfully shows cause (see Re Asmar [Bail application]  VSC 487; R v Paterson  VSC 268; Robinson v The Queen  VSCA 161; JF  VSC 139). But in any event, the two issues largely overlap and the risk factors are relevant to whether the applicant has shown cause (ibid).
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 themselves 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 themselves or any other person (s 4(2)(d)(i)).
“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;
• whether the accused has publicly expressed support for a terrorist act or organisation or has provided resources for a terrorist organisation.
The question of “unacceptable risk” is balanced against matters in favour of bail, such as delay, ties to the jurisdiction and employment (see Hildebrandt v Director of Public Prosecutions  VSC 198 and Mokbel v Director of Public Prosecutions (No 3)  VSC 393).
Other circumstances in which bail will be refused are if the court is satisfied (onus being 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)).
Section 18AE of the Bail Act allows an informant or the DPP to make an application for bail to be revoked to the court where an accused is required to appear on bail (noting that for an accused charged with murder, any application must be before the Supreme Court). For example, this may occur when an accused has not complied with bail conditions previously set or is alleged to have reoffended while on bail. There is no “threshold” circumstance for an application for revocation to be made. On hearing an application to revoke bail, the court can either grant or refuse the application. An application for bail under section 18 must be conducted as a de novo hearing and determined in accordance with section 4 (see Elsayed  VSC 120). The DPP can appeal to the Supreme Court any decision not to revoke bail (s 18AG). If bail is revoked, an accused can reapply for bail providing the court is satisfied that there are new facts and circumstances that have arisen since the revocation, or that the accused was not legally represented at the time of the application, or that the revocation was done by a bail justice.
Courts must give reasons for refusing or revoking bail.
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. The Magistrates’ Court must determine the application as if the accused was charged and is awaiting hearing for the offence subject of the appeal (Criminal Procedure Act 2009 (Vic) s 265(2)). 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 before 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 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 (see Lennon  VSC 239).