Grounds for refusing bail

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

An accused person who is being held in custody is entitled to be granted bail unless a bail decision-maker is required by the Bail Act (s 4) to refuse bail.

This presumption in favour of bail does not apply where the accused is charged with certain serious offences. There are two categories of such serious offences:

1 Schedule 1 “exceptional circumstances” offences;

2 Schedule 2 “show compelling reason” offences.

An accused person charged with such an offence will be refused bail unless they can establish exceptional circumstances (s 4A) or show that a compelling reason exists (s 4C) that justifies bail being granted.

It is for the accused person applying for bail to satisfy the bail decision-maker that exceptional circumstances or a compelling reason exists (see ss 4A(2), 4C(2)). The principles are summarised by Justice Bell in Woods v DPP [2014] VSC 1, although this decision refers to an applicant being required to “show cause” why their detention in custody was not justified, which was the bail threshold before 21 May 2018 when the “show cause” test was replaced by a requirement to “show a compelling reason”.

If an accused person is charged with an offence that is both a schedule 1 and 2 offence, it is taken to be a schedule 1 offence (s 3AA).

An accused person must be refused bail if there is an “unacceptable risk” that, if granted bail, they will fail to appear, commit an offence, endanger the safety or welfare of any person or obstruct the course of justice or interfere with a witness (see s 4E). The onus is on the prosecution to establish unacceptable risk.

Exceptional circumstances

Overview

An accused person who is charged with certain serious offences must establish “exceptional circumstances” in order to be granted bail. These charges are set out in schedule 1 of the Bail Act.

Bail decision-making process for schedule 1 offences

Since 1 July 2018, the Bail Act includes flow chart 1 (s 3D(2)), which sets out the key features of the decision-making process and is a guide to the steps a bail decision-maker is required to take in determining whether bail should be granted where an accused is charged with a schedule 1 offence.

The test for a bail decision-maker when an accused is charged with a schedule 1 offence is a two-step test.

The first step is to decide whether the bail applicant has demonstrated that exceptional circumstances exist (see s 4A; flowchart 1 in s 3D(2)). If the bail applicant has not demonstrated that exceptional circumstances exist, then bail must be refused.

If the bail applicant has demonstrated that exceptional circumstances exist, then the bail decision-maker must move to the second step and decide whether the prosecution has established that the bail applicant is an unacceptable risk (see s 4B; flowchart 3 in s 3D(4)). If the applicant is an unacceptable risk, then bail must be refused (seeUnacceptable risk”).

Treason and murder

If the charge is treason, bail can only be granted by the Supreme Court (s 13(1) Bail Act). If the charge is murder, bail can only be granted by the Supreme Court or by a magistrate who commits the accused for trial (s 13(2)). In either case, the accused must establish exceptional circumstances.

Concept of “exceptional circumstances”

The term “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 is another case decided the other way. This is because each application is decided on the particular facts of that individual case and no two cases are exactly the same.

The onus that rests on the accused is a heavy one.

Parliament’s intention is clearly that people 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 bail (see e.g. Re Pickersgill [2013] VSC 715).

Bail is not a punishment but serves to ensure that an accused person attends court to answer the charges.

Surrounding circumstances

Since 1 July 2018, the Bail Act has required a bail decision-maker to take into account a wide range of relevant factors, described as “surrounding circumstances”, in considering whether exceptional circumstances exist (s 4A(3)).

Under section 3AAA of the Bail Act, a bail decision-maker must, when considering the surrounding circumstances of a matter, take into account “all the circumstances that are relevant to the matter”, including, but not limited to, a wide range of factors set out in section 3AAA.

Courts have considered a number of these factors and their significance in a bail application. Relevant factors to be considered under exceptional circumstances include:

delay;

strength of the Crown’s case;

financial hardship caused by detention;

bail applicant’s willingness to accept stringent bail conditions;

parity;

the need to prepare a defence;

the bail applicant’s age or health;

the bail applicant’s need to attend drug rehabilitation/access treatment.

Delay

Delay is only an exceptional circumstance if the delay is out of the ordinary, taking into account the usual listing delays (see Tang (1995) 83 A Crim R 593). (A two-year delay in a drug trafficking case was not exceptional in Mokbel v Director of Public Prosecutions [2002] VSC 127, but see later Mokbel v Director of Public Prosecutions (No 3) [2002] 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 [2006] 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 [2010] VSC 122 held that a period of 22 months in custody between arrest and trial was in itself an exceptional circumstance. See also the comments of Justice Coldrey in DPP v Cozzi [2005] VSC 195.

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 [2015] VSC 198).

See also Lennon [2016] 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’s case

Where it may be assessed, the strength of the Crown’s case is a relevant factor to consider (see DPP (Vic) v Cozzi [2005] VSC 195). See also “Unacceptable risk”.

Financial hardship caused by detention

Financial hardship caused by detention is a relevant factor (see Dale v DPP [2009] VSCA 212).

In El Rahi (unreported, VSC, Beach J, 18 January 1996), financial hardship did not amount to exceptional circumstances, even when combined with the absence of priors, a good work record, and a supportive family.

On the other hand, a combination of factors – such as weakness of the Crown’s case, the availability of employment, the health of the bail applicant or of their dependants, the age of the applicant, their personal circumstances, 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) [1992] VicSC 373).

Bail applicant’s willingness to accept stringent bail conditions

The willingness of a bail applicant 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

Parity (i.e. that a co-offender has 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) [1997] VicSC 497; Re Wilson (bail application) [2006] VSC 178). This is rare.

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

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 [1998] QSC 152). It may also be a relevant factor when combined with other factors.

Bail applicant’s age or health

The age or health of the bail 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 [2003] VSC 209).

An applicant’s youth (depending on the individual facts) may be a relevant 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 bail applicant’s “relative youth” and lack of prior offending as relevant to the question of demonstrating exceptional circumstances.

Bail applicant’s need to attend drug rehabilitation/access treatment

The bail applicant’s need to attend drug rehabilitation and/or access treatment is not of itself exceptional.

However, it is a matter that can be taken into account when it can be demonstrated that it is necessary, and that the bail applicant cannot obtain the treatment while on remand.

See the comments of Justice Hollingworth in 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).

Show compelling reason

Overview

If the bail applicant is charged with any of the offences listed in schedule 2 of the Bail Act, the bail decision-maker must refuse bail, unless the accused can “show a compelling reason” that justifies bail being granted (see sch 2 (offences – show compelling reason) Bail Act at www.legislation.vic.gov.au).

Bail decision-making process for schedule 2 offences

Since 1 July 2018, the Bail Act has included flow chart 2 (s 3D(3)), which sets out the key features of the decision-making process and is a guide to the steps a bail decision-maker is required to take in determining whether bail should be granted where an accused is charged with a schedule 2 offence.

The test for a decision-maker when an accused is charged with a schedule 2 offence is a two-step test.

The first step is to decide whether the bail applicant has demonstrated that a compelling reason exists (see s 4C; flowchart 2 in s 3D(3)). If the bail applicant has not demonstrated that a compelling reason exists, then bail must be refused.

If the bail applicant has demonstrated that a compelling reason does exist, then the bail decision-maker must move to the second step and decide whether the prosecution has established that the bail applicant is an unacceptable risk (see s 4B; flowchart 3 in s 3D(4)). If the bail applicant is an unacceptable risk, then bail must be refused (seeUnacceptable risk”).

Concept of “compelling reasons”

The phrase “compelling reasons” is not defined in the Bail Act.

In Re Ceylan [2018] VSC 361 at [47], Justice Beach considered the interpretation by courts of the word “compelling” in other contexts. His Honour said that a “… compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified. It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional”.

For every case in this area, there is another case decided the other way. This is because each application is decided on the particular facts of that individual case and no two cases are exactly the same.

Surrounding circumstances

Since 1 July 2018, the Bail Act has required a bail decision-maker to take into account a wide range of relevant factors, described as “surrounding circumstances”, in considering whether a compelling reason exists (s 4C(3) Bail Act).

Under section 3AAA of the Bail Act, a bail decision-maker must, when considering the surrounding circumstances of a matter, take into account “all the circumstances that are relevant to the matter”, including, but not limited to, a wide range of factors set out in section 3AAA (see s 3AAA (surrounding circumstances) Bail Act at www.legislation.vic.gov.au).

Unacceptable risk

Bail must be refused if the court is satisfied (with the onus on the prosecution 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 any person; or

interfere with a witness or otherwise obstruct the course of justice in any matter (s 4E Bail Act; flowchart 3 in s 3D(4)).

“Unacceptable risk” is not defined in the Bail Act. A bail decision-maker must take into account the “surrounding circumstances” as set out in section 3AAA of the Bail Act.

Other grounds for refusing bail

Bail may be refused if the court is satisfied that there has not been enough time since the commencement of the proceeding against the accused to obtain sufficient information for the purpose of deciding the matter (s 8A Bail Act).

Bail may also be refused if the bail applicant is charged with an offence of causing injury and it is uncertain whether the injured person will die or recover (s 8B).

Revoking bail

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 treason or murder, such an application must be made to the Supreme Court). For example, an application for bail to be revoked may occur when an accused has not complied with bail conditions 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 revoke bail or refuse the application (s 18AF). 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 (s 18AA).

Courts must give reasons for refusing or revoking bail.

Appeal bail

If an accused person is convicted of an offence and sentenced in the Magistrates’ Court and lodges an appeal against their 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 (s 265(2) Criminal Procedure Act 2009 (Vic)).

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 the 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 County Court or Supreme Court and lodges an appeal against their 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 before 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 [2016] VSC 239).