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  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.
An accused person who is charged with certain serious offences must establish that they have “exceptional circumstances” to be granted bail. These charges are set out in schedule 1 of the Bail Act.
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 (see “Unacceptable risk”).
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.
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”.
In Re Gloury-Hyde  VSC 393, the Supreme Court held that the concept of exceptional circumstances is elusive. However, in appropriate cases, exceptional circumstances may be a combination of:
• the strength of the prosecution’s case; and
• an applicant’s personal circumstances; and
• an absence of factors that show an applicant poses an unacceptable risk of reoffending or to the community .
In Re CT  VSC 559, the court held that exceptional circumstances may be established by a combination of factors involving the nature of the Crown’s case (including the strength of the case, any undue delay in bringing the matter to trial, any unusual features of the offending or of the investigation) and the applicant’s personal circumstance . In Re CT, the court held that what is ultimately significant is that the circumstances, viewed as a whole, are exceptional to the extent that bail is justified, even considering the very serious nature of the charge (at ).
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  VSC 715).
More recently, in Re CT  VSC 559, the Supreme Court noted that having to show exceptional circumstances takes a case out of the norm and is a high hurdle for a bail applicant; however, it is not an impossible standard. In Re Reker  VSC 81, Justice Beal – citing Justice Kay in DPP v Muhaidat  VSC 17 – noted that the applicant needs to establish circumstances out of the ordinary that are exceptional to the ordinary circumstances that would otherwise entitle the applicant to bail. Justice Beal noted that ordinary circumstances include hardship to the accused or to their family and disruption to the accused’s work.
In Re Ceylan  VSC 361 (at ) and in Re Sipser  VSC 362 (at ), Justice Beach accepted that proof by the applicant that they are not an unacceptable risk of breaching bail can be taken into account – in combinaion with other surrounding circumstances – for the purpose of attempting to establish exceptional circumstances (see also Re Gloury-Hyde (No 1)  VSC 393 at ).
Bail is not a punishment but serves to ensure that an accused person attends court to answer the charges.
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:
• any delay;
• the strength of the Crown’s case;
• the likely sentence;
• any hardship caused by detention;
• the bail applicant’s willingness to accept stringent bail conditions;
• the need to prepare a defence;
• the bail applicant’s age, health or vulnerability;
• the bail applicant’s need to attend drug rehabilitation/access treatment;
• the bail applicant is a child.
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  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 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  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  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.
Where it may be assessed, the strength of the Crown’s case is a relevant factor to consider (see DPP (Vic) v Cozzi  VSC 195).
See also “Unacceptable risk”.
The possibility that an applicant for bail – if convicted of the offences they are charged with – may be sentenced to a term of imprisonment that is less than the period they have already spent on remand may be an exceptional circumstance (see Re DR  VSC 151 at ).
Financial hardship caused by detention is a relevant factor (see 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 the absence of priors, a good work record, and a supportive family. The hardship that imprisonment might impose on an applicant’s family is not an exceptional circumstance by itself (see Re Martinow  VSC 118 at ).
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)  VSC 373).
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 (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)  VSC 497; Re Wilson (bail application)  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 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 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  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  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.
In Re Gloury-Hyde  VSC 393, the Supreme Court noted that the right to liberty is particularly important when the applicant is young and has physical, psychological and cognitive problems. The nature and exent of these problems and their impact on the applicant’s functioning, when considered with other factors (e.g. the availability of treatment) may “establish exceptional circumstances justifying a grant of bail” (at ).
Being exposed to serious, repeated violence while on remand is a special vulnerability that may constitute an exceptional circumstance (see Re Logan  VSC 134 at –).
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)  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).
Section 3B(1)(a) of the Bail Act requires all other options to be considered before a child is remanded in custody. The relevance of section 3B(1)(a) and the age of a bail applicant was considered in Re JO  VSC 438 by Justice T Forrest. Justice Forrest noted that while the burden of proving exceptional circumstances is a heavy one, the age of a bail applicant is a significant factor in favour of a child for two reasons. First, children have “special status” under the Bail Act. Second, an assessment of exceptional circumstances has to be “viewed through the prism of section 3B(1)(a)”. This means that circumstances that might not be exceptional for an adult offender might be considered to be exceptional for a child. This also means that section 3B(1)(a) makes any determination under the Bail Act – including whether exceptional circumstances are established – a different exercise in the case of a child.
See also Re TP  VSC 748 (at –) (the case of a child bail applicant charged with serious offending) and Re DB  VSC 53 (at ) (a child bail applicant aged 13).
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 Bail Act (offences – show compelling reason) at www.legislation.vic.gov.au).
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 (see “Unacceptable risk”).
The phrase “compelling reasons” is not defined in the Bail Act.
In Re Ceylan  VSC 361 at , 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”. At , His Honour observed that determining whether an applicant shows a compelling reason involves considering all the relevant circumstances, including the strength of the prosecution’s case, the applicant’s personal circumstances and their criminal history. A synthesis of all the factors must compel the conclusion that detention is not justified. His Honour also noted that the exceptional circumstances test is plainly intended to be more difficult than the compelling reasons test .
In Re Alsulayhim  VSC 570 (at ), the court held that the Bail Act’s amended language in section 4C that requires an applicant to show there is a “compelling reason” that “justifies the grant of bail” compared to the former language that “detention in custody is not justified” does not change the Re Ceylan test or its application.
In the following cases considered by the Supreme Court, it was established that the bail applicant showed a compelling reason:
• the bail applicant was remanded in custody longer than any likely sentence of imprisonment (see Re Johnstone (No 2)  VSC 803 at , [18–19]);
• the bail applicant would be vulnerable in custody and their offending was at the lower end of seriousness (see Re Walker  VSC 804 at [49–50]);
• granting bail was likely to be in the community’s interest (see Re Gaylor  VSC 46 at [35–41] where the court set out matters important to finding the existence of this factor);
• the bail applicant was a youth or a child and had special vulnerability (see Re JM  VSC 156 at [49–51], , [59–60] where the court held that observations in Re JO  VSC 438 about children facing the exceptional circumstances test also apply to the compelling reason test in cases involving a child bail applicant).
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).
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.
In Hall v Pangemanan  VSC 533, Justice Croucher considered the application of “unacceptable risk” in a bail application where the applicant was charged with being drunk in a public place and breaching a curfew condition (a Bail Act offence). His Honour noted that this type of offending is not serious and has a low risk of harming the public (apart from being a nuisance and creating work for police officers). An “unacceptable risk” is not any risk of reoffending; rather, the question is whether the risk is unacceptable. The law must recognise that a high risk of reoffending of a minor nature is not unacceptable. His Honour concluded that the risk in that case was acceptable because the alternative (i.e. imprisonment for an offence that does not warrant such a sentence) is intolerable. His Honour said, “Common sense says that we cannot keep locking people up in those circumstances” (at ).
Even in circumstances where the prosecution concedes that an applicant’s likely sentence is less than the time they may spend on remand, a bail decision-maker must still consider the issue of risk and may refuse bail if the accused poses an unacceptable risk (see Re Dib  VSC at , , ).
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).
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 prescribed by the Bail Act 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 order revoking bail was made by a bail justice (s 18AA). 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 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  VSC 239).