Grounds for refusing bail
NOTE: The law in this chapter is current as at 2 December 2024. Further changes to the bail laws are anticipated throughout 2025 (introduced by the Youth Justice Act 2024 (Vic).
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 section 4 of the Bail Act to refuse bail.
This presumption in favour of bail does not apply where the accused is charged with certain serious offences. These offences are found in the following schedules:
schedule 1 ‘exceptional circumstances’ offences;
schedule 2 ‘show compelling reason’ offences; and
schedule 3 ‘summary offences’ exceptions.
Where an applicant must demonstrate either exceptional circumstances or a compelling reason to be granted bail, there is a two-step bail test.
The first step is that the applicant must establish exceptional circumstances (s 4A) or show that a compelling reason exists (s 4C) that justifies bail being granted. If they are unable to do so, bail will be refused. If they are able to do so, the court must then go on to consider the second step, which relates to the question of whether the applicant is an unacceptable risk. The prosecution bears the onus of proof in respect of risk. These steps are outlined in further detail below.
Where an applicant is charged with a schedule 3 summary offence, and therefore falls outside of the presumption of bail, the prosecution must demonstrate that the applicant is an unacceptable risk. This is a single step test. Unacceptable risk can be alleged in a number of different ways. This test is further explained below.
Grounds for refusing bail
Chapter: 3.6: How bail works
Contributor: Carolyn Howe, Magistrate, Magistrates’ Court of Victoria, and Natalie Heynes, Magistrate, Magistrates’ Court of Victoria
Current as of: 2 December 2024
Law Handbook Page: 181
Next Section: Stage 1: Demonstrating exceptional circumstances or a compelling reason to be granted bail
