Stage 1: Demonstrating exceptional circumstances or a compelling reason to be granted 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).
It is for the accused person applying for bail to satisfy the bail decision-maker that exceptional circumstances or a compelling reason exists (see Bail Act ss 4A(2), 4C(2)). Neither ‘exceptional circumstances’ nor ‘compelling reason’ are defined in the Bail Act, however various cases have considered these concepts. See below for further information.
The applicable test for bail is to be determined by reference to the charges that are currently before the court, regardless of any agreement or negotiation about how the case will ultimately proceed.
Exceptional circumstances
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An accused person who is charged with certain serious offences or who falls into certain categories must establish that they have ‘exceptional circumstances’ to be granted bail. These charges and categories are set out in schedule 1 of the Bail Act or with reference to section 4AA of the Bail Act.
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).
In Re Scott [2011] VSC 674, Forrest J explained that exceptional circumstances refer to ‘something unusual or out of the ordinary’ (at [14]). In Re Whiteside [1999] VSC 413, the court held ‘the hurdle is a high one, but… should not be set so high that it is impossible for an accused presently in custody to ever achieve or virtually ever achieve bail’. Various courts have also confirmed that either an individual circumstance, or combination of circumstances, can constitute exceptional circumstances.
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As indicated above, 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 Bail Act s 4A). In determining the existence of exceptional circumstances, the bail decision maker must have regard to the ‘surrounding circumstances’ of the case, these are explained further below. 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 (s 4D). If the applicant is an unacceptable risk, then bail must be refused (see ‘Unacceptable risk’, below).
Flow Chart 3, set out in section 3D of the Bail Act assists in the application of the two-step test where demonstrating ‘exceptional circumstances’ is the first limb:
FLOW CHART 3: p 182
Show a compelling reason
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If the bail applicant is charged with any of the offences listed in schedule 2 of the Bail Act, or falls into a category relating to terrorism issues, the bail decision-maker must refuse bail, unless the accused can ‘show a compelling reason’ that justifies bail being granted (Bail Act ss 4AA(3), (4)).
Like ‘exceptional circumstances’, the phrase ‘compelling reasons’ is not defined in the Bail Act. In Re Ceylan [2018] VSC 361, Beach J described a compelling reason as ‘a reason which is forceful and therefore convincing.’ A compelling reason may be established by a combination of circumstances.
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The process is effectively the same as that described above for schedule 1 offences, however the test itself differs.
The test for a decision-maker when an accused is charged with a schedule 2 offence or falls into the category contained within section 4AA(4) 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). The bail decision maker must take into account the ‘surrounding circumstances’ (explained below) in determining whether a compelling reason exists to justify the grant of bail. 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 (s 4C(4)). If the bail applicant is an unacceptable risk, then bail must be refused.
Flow Chart 4, set out in section 3D of the Bail Act, assists in the application of the two-step test where demonstrating a ‘compelling reason’ is the first limb:
FLOW CHART 4: p 183
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Section 4E outlines the ‘unacceptable risk’ test. This can either be the second limb of a two-step bail test, or considered as its own test, depending on the nature of the charges.
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:
commit a schedule 1 or a schedule 2 offence; or
otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means; or
interfere with a witness or otherwise obstruct the course of justice in any other matter; or
fail to surrender into custody in accordance with the conditions of bail; and
the risk is an unacceptable risk.
Some examples of an unacceptable risk have been included in the legislation. These include, if released on bail, that the accused would drive dangerously, commit a family violence offence, an aggravated burglary, an armed robbery, a carjacking or a home invasion.
It is for the prosecution to prove that an applicant represents an unacceptable risk. An applicant is not required to establish an absence of unacceptable risk (see Re LD [2019] VSC 457).
‘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. A bail decision-maker can impose conditions to mitigate risk and must consider whether risk can be reduced to a level at which it becomes an acceptable risk. The question is not whether the risk can be eliminated.
The law must recognise that a high risk of reoffending of a minor nature is not unacceptable.
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.
In determining whether an applicant constitutes an unacceptable risk, a court is required to evaluate the alleged risks and consider whether they can be made acceptable by the imposition of conditions as recognised by the Bail Act.
Flow Chart 5, in section 3D of the Bail Act, shows the process of applying the unacceptable risk test alone:
FLOW CHART 5: p 184
Surrounding circumstances
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The bail decision-maker must take into account a wide range of relevant factors, described as ‘surrounding circumstances’, in considering whether exceptional circumstances or a compelling reason exists (Bail Act ss 4A(3), 4C(3)), and whether the applicant poses an unacceptable risk (s 4E(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:
whether if found guilty, it is likely that the accused would be sentenced to a term of imprisonment and if so, whether the time on remand would exceed that term of imprisonment;
the nature and seriousness of the alleged offending;
the strength of the prosecution case;
the accused’s criminal history;
the extent to which the accused has complied with previous bail conditions;
whether at the time of the alleged offence, the accused was on bail for another offence, on parole, subject to sentence etc;
whether there is a family violence intervention order in force against the accused;
the accused’s personal circumstances, associations, home environment and background;
any special vulnerability of the accused including being an Aboriginal person, a child or experiencing any ill health (including mental illness) or having a disability;
the availability of treatment or bail support services;
the known or likely view of the alleged victim towards the grant of bail;
delay/the length of time the accused is likely to spend in custody if bail is refused.
Note that there are also specific considerations in respect of terrorism – section 3AAA should be read in its entirety.
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Delay is only an exceptional circumstance if the delay is out of the ordinary, taking into account the usual listing delays.
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 but it is only one of many factors that must be considered and is not on its own determinative.
A significant lapse of time between the alleged offending and laying of charges may be particularly relevant in determining whether exceptional circumstances exist.
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Where it may be assessed, the strength of the Crown’s case is a relevant factor to consider.
If there is a good argument that the charge on which an applicant is remanded is foredoomed to fail, that fact itself amounts to exceptional circumstances and necessitates a grant of bail. In many cases, the true extent and strength of the case against an applicant will be beyond the power of the bail decision-maker to determine given that many applications are heard at an early stage in the proceedings, before the brief of evidence has been served in its entirety.
A court is not required to take the strength of the prosecution case at its highest. It is one factor to be considered along with all the other surrounding circumstances. Where an applicant for bail submits there are ‘triable issues’ it is not the role of the court in a bail application to try such issues.
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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. It is an important factor but not determinative. It is one of many factors that must be considered.
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The bail applicant’s need to a end drug rehabilitation and/or access treatment is not of itself exceptional. However, it is a ma er 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. In some cases, the applicant’s alleged offending may be so serious that the inherent risk to the safety of members of the community of releasing the applicant into a treatment facility may not be justifiable. Evidence of the availability of treatment and the nature of the facility and arrangements will generally be required.
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Considerations in respect of child applicants are set out both as a surrounding circumstance in section 3AAA and in relation to the child specific provision set out in section 3B. Section 3B(1)(a) of the Bail Act requires the court to consider the child’s age, maturity and stage of development at the time of the alleged offence. The legislation recognises the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being ‘a last resort’ (s 3B(1)(b)). Circumstances that might not be exceptional for an adult offender might be considered to be exceptional for a child. This means any determination under the Bail Act – including whether exceptional circumstances are established is a different exercise in the case of a child.
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The inclusion of additional specific considerations in the March 2024 bail reforms recognise that Aboriginal people are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system. Aboriginality is outlined both in section 3AAA as a surrounding circumstance to be taken into account, and as a specific provision in section 3A. Section 3A provides a non-exhaustive list of considerations that bail decision makers must take into account when determining bail for an Aboriginal person. Some of these factors must be applied in all bail applications where the applicant identifies as Aboriginal and others require evidence or further information for the court to consider. These provisions should be read in their entirety, along with the case of Re Terei, outlined above.
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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 (Bail Act s 8A) , or if the bail applicant is charged with an offence of causing injury to another person and it is uncertain whether the person injured will die or recover from the injury (s 8B).
Stage 1: Demonstrating exceptional circumstances or a compelling reason to be granted 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: Bail and the Human Rights Charter
