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  • Writer's pictureShaun Pascoe

Bail: An Overview

Updated: Oct 26, 2023

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How Applications For Bail Are Decided

LEGISLATION UPDATE!. Please note the following summary does not reflect bail reform that was passed by both houses and has received royal assent as of 24/10/23. The proposed bail reforms are to take effect in March 2004 unless an earlier date is gazetted. For a summary of the amendments to the Bail Act read our update here. As soon as these amendments become operative this article will reviewed and updated in full. Read on for a summary of our bail laws that remain in force until the amendments become operational.

In Victoria, Bail Applications are decided in accordance with the Bail Act 1977 (Vic). Bail is primarily a means of compelling an accused person to attend Court to answer an allegation of criminal offending.

Bail refers to the process of an accused providing a written undertaking that they will attend Court to answer an allegation of a criminal offence, and to also comply with any other conditions that are stipulated.

Such conditions may include a reporting condition (requiring an accused to report to a police station on a basis stipulated by the Bail Decision Maker), a curfew, providing the Court a surety (a deposit which will be forfeited if an accused fails to attend Court, or otherwise breaches bail).

When the Issue of Bail Arises

Following a complaint of criminal behaviour, a police officer may arrest and question an accused about the complainant and their alleged involvement.

The formal questioning of an accused will occur at a police station, and at the conclusion of that interview, the arresting officer(s) must decide upon whether that person will be released from custody.

Section 4 of the Act provides that a person accused of an offence and held in custody is entitled to be released on bail. However, this presumption to bail may be overridden by other competing factors under the Act.

Entitlement to Bail for a Person Held in Custody Not Apply

What are the circumstances when the entitlement to bail for a person held in custody not apply?

Several sections qualify the presumption to bail set out under Section 4 of the Act. The factors that impact upon whether the presumption of bail operates includes:

  • the seriousness and circumstances of an alleged offence.

  • the criminal history of an accused (offences of violence, family violence, make threat to kill; breaches of intervention orders, stalking, instances where sentencing orders have been breached).

  • the bail history of an accused (especially if there have been any previous instances of failing to attend court on bail, or where offences are committed whilst on bail).

Where a bail outcome is dependent upon the 'Exceptional Circumstances' or "Show compelling reason' test

Exceptional Circumstances Requirement

Pursuant to Section 4AA and Schedule 1, of the Act, an 'exceptional circumstances' test applies to very serious offences including but not limited to:

  • treason

  • murder

  • aggravated home invasion

  • aggravated carjacking

  • drug trafficking (large commercial quantity)

  • drug trafficking (commercial quantity)

  • cultivating a narcotic plant (large commercial quantity)

  • cultivating a narcotic plant (commercial quantity)

Without replicating the detail of Section 4AA, an accused may also be subject to an exceptional circumstances test where he or she is charged with a Schedule 2 offence, and is already on bail (or charge and summons) for a Schedule 1 or Schedule 2 offence.

Schedule 2 offences include:

  • Manslaughter.

  • Child homicide.

  • Homicide by firearm.

  • Intentionally cause serious injury in circumstances of gross violence

  • Recklessly cause serious injury in circumstances of gross violence

  • Threat to kill (when related to family violence)

  • Stalking (and when previously found guilty of threatening violence towards another)

  • Rape

  • assault with intent to commit a sexual offence

  • sexual penetration of a child

An indictable offence committed whilst on bail (or on charge and summons) for another indictable offence is also a schedule 2 offence.

What are 'Exceptional Circumstances'?

There have been many Supreme Court decisions that have interpreted the term 'exceptional circumstances' for the purpose of Section 4AA and 4A of the Act.

In the Supreme Court case of Re CT [2018] VSC 559, the Court remarked that:

"Having to show ‘exceptional circumstances’ takes a case out of the normal and is a high hurdle for a bail applicant; however, it is not an impossible standard". And that:

‘Exceptional circumstances’ may be established by a combination of factors involving the nature of the Crown’s case – including its strength, undue delay in bringing the matter to trial, or unusual features of the offending or investigation – and the applicant’s personal circumstances.

Show Compelling Reasons requirement:

Pursuant to sections 4AA (3) & (4) & 4C of the Act, an accused will have to show 'compelling reasons' before he or she is released from custody.

Any person arrested and taken into custody and charged with a Schedule 2 offence will be required to establish compelling reasons.

Refer above to the non-exhaustive list of Schedule 2 offences.

What are 'Compelling Reasons'?

As with the interpretation of the term 'exceptional circumstances' there have been many judicial decisions on the interpretation of 'compelling reasons' for the purposes of a bail decision.

In the case of Re Ceylan [2018] VSC 361:

"Whether an accused shows a ‘compelling reason’ involves considering all relevant circumstances including the strength of the prosecution case, the accused’s personal circumstances, and criminal history. A synthesis of all the factors must compel the conclusion that detention is not justified.

This will likely be shown if there is a ‘forceful, and therefore convincing, reason showing, that in all the circumstances, the continued detention of the applicant was not justified.’

But this does not require the applicant to show a reason that is irresistible or exceptional. A ‘compelling reason’ might be described as one that is ‘difficult to resist.’

The Court must consider the 'surrounding circumstances' when considering either the 'exceptional circumstances' test or the 'show compelling reasons test.

The Act requires under Section 3 the bail decision maker (Magistrate or Judge) to also consider the 'surrounding circumstances' when applying either the 'exceptional circumstances' or 'show compelling reasons' test. Surrounding circumstances under Section 3 include:

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence.

(b) the strength of the prosecution case.

(c) the accused's criminal history.

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail.

(e) whether, at the time of the alleged offending, the accused:

(i) was on bail for another offence; or

(ii) was subject to a summons to answer to a charge for another offence; or

(iii) was at large awaiting trial for another offence; or

(iv) was released under a parole order; or

(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence.

(f) whether there is in force:

(i) a family violence intervention order made against the accused; or

(ii) a family violence safety notice issued against the accused; or

(iii) a recognised DVO made against the accused.

(g) the accused's personal circumstances, associations, home environment and background.

(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;

In addition, the bail decision maker must consider whether releasing an accused from custody would pose an 'unacceptable risk'.

The Act prescribes a 2-stage process to granting bail when the presumption to ail will not apply. The first, is consideration of whether exceptional circumstances or show compelling reasons apply (and considering the surrounding circumstances).

The second, is whether releasing the accused would present an 'unacceptable risk" (refer to sections 4D & 4E of the Act) Section 4E of the Act defines the unacceptable risk as follows:

(a) there is a risk that the accused would, if released on bail:

(i) endanger the safety or welfare of any person; or

(ii) commit an offence while on bail; or

(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or

(iv) fail to surrender into custody in accordance with the conditions of bail; and

(b) the risk is an unacceptable risk.

Conditions May be Imposed for a Grant of Bail

In any situation a bail decision maker is required to decide the issue of whether an accused be released on bail, conditions may be imposed (regardless as to whether a presumption to bail applies)

The most basic condition attaching to a grant of bail may be a release on the accused's own undertaking (promise) to attend Court each time he or she is required to.

Other conditions may include:

  • residential condition (to live at a specified address)

  • curfew

  • reporting to a police station (on specified days of the week)

  • surety

  • not to contact witnesses for the prosecution

  • to comply with the conditions of a current Intervention Order

The types of conditions that may be imposed upon a grant of bail in favour of an accused are set out under Section 5AAA of the Act.

What Options are Available if an Accused is Refused Bail?

Section 18 provides a right to a further application for bail if it has been refused by a bail decision maker. Frequently when bail is refused by a further Magistrate a new application for bail may be made if new facts and circumstances have arisen since the previous application (refer to Section 18AA of the Act).

An accused may also apply to the Supreme Court for bail upon refusal of bail by a Magistrate.

What are the Consequences of Breaching Bail?

If a person does not attend Court as required on bail, he or she is liable for the offence of Fail to Answer Bail. Under Section 30 of the Act, this offence carries a maximum of 2 years imprisonment.

It is also an offence to fail with other conditions imposed by the Court on a bail undertaking. Section 30A of the Act provides for a penalty of 30 penalty units or 3 months imprisonment for a breach of conduct conditions imposed on a bail undertaking.

Timing of the Bail Application is Important

There is always a tension between getting released on bail as quickly as possible and ensuring the application for bail is the best it can be. Timing of an application for bail is therefore important.

Obviously, an accused who finds themselves in either an 'exceptional circumstance' or 'show compelling reason' scenario will have a more onerous task of persuading a Court to grant bail.

In all applications for bail the bail decision maker will consider:

  • the strength of the prosecution case

  • the accused person's ties to the community

  • the potential for delay in finalizing the criminal case (relative to the seriousness of the charge and the accused's criminal history).

It is important to note that a bail decision maker is entitled to take the prosecution case at its highest when an accused is first brought to Court.

It is frequently the case that a prosecution case that might initially seem quite strong on the evidence of the police Informant, may be less so after a full brief of evidence is obtained, and the entirety of the prosecution case subjected to scrutiny.

For example, evidence of identification may not in fact be as strong as what was initially asserted in the Informant's evidence.

The evidence may also be deficient in other respects. Time might also be required to obtain documentary evidence or get witnesses to court to support an assertion that an accused has a job; can live at an alternative address; will participate in rehabilitative programs; or has a surety.

This is of course the ability to file a further application for bail, however the first application ought to where possible be the best application.

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