Bail considerations Vic, Australia

What are "exceptional circumstances" for bail in Victoria?

How do I prove exceptional circumstances to get bail?

What factors do courts in Victoria consider as a "risk" when granting bail?

Can I get bail if I'm charged with a serious offense in Victoria?

What role do community ties play in a bail application in Victoria?

How does the court assess "unacceptable risk" in bail decisions?

Can I apply for bail if I have a prior criminal record in Victoria?

What are the chances of getting bail for drug-related charges in Victoria?

How can I appeal a bail refusal in Victoria?

What is the process for a bail application under exceptional circumstances?

Can medical conditions be considered as exceptional circumstances for bail?

How do family responsibilities affect a bail application in Victoria?

What kind of evidence is needed to prove exceptional circumstances?

Can I get bail if I'm considered a flight risk in Victoria?

How does the new Bail Act affect bail applications in Victoria?

What is a "show cause" position, and how is it different from exceptional circumstances?

Can I get bail if I'm charged with domestic violence in Victoria?

How do electronic monitoring and curfews affect bail conditions?

What are the penalties for breaching bail conditions in Victoria?

Can I change my bail conditions if there are exceptional circumstances?

Exceptional circumnstances

Assisting Authorities (Mr Z [2005] VSC 90)

Extreme Provocation (Stavreski [2004] VSC 16)

Youth always but particularly when dealing with a child  see 3B(1) of the Bail Act Re JO[2018] VSC 438

Character

Different offending

More Minor offending (R v Newman and Turnball)(1997 1 VR 146)

Stable accommodation

Surety

Court supported bail programs (CISP & CREDIT)

Other treatment programs

Stable employment

Supervision, family or otherwise

Prior history or lack there of

Strength of the police case

Previous compliance with bail

Any vulnerability

View of the complainant (if relevant)

Likely sentence to be imposed

What is Bail?

In Victoria bail is the process whereby a person who has been arrested and charged, is released from police custody back into the community whilst awaiting the next court hearing.

If bail is refused, then the arrested person is remanded in custody until the matter is finalised or until a further application for bail is successful.

In the Magistrates’ Court it can be many months between arrest and hearing. Even longer in the higher courts. So the issue of bail is an important one.

In deciding whether to grant bail, either the police, the bail justice or a member of the judiciary presiding in court, must balance competing considerations. In many cases the decision can be very difficult, as it involves an assessment of future risk.

Possible Conditions of Bail

If bail is granted, the Accused is released from custody, but their release is usually subject to conditions. The conditions are imposed to alleviate any perceived potential risks once the Accused has been released.

Common conditions include:

Having to reside at a specified address;

Being subject to a nightly curfew;

Periodic reporting to the police station;

Not being able to leave the state and/or country; and

Not being able to associate with witnesses or co-accused.

Implications of denial

If refused, the Accused is remanded in custody. However, being held in custody whilst awaiting the next court date can have serious implications. Just as the courts regard the use of prison as a ‘last resort’ in sentencing, remanding a defendant in custody should also be regarded as a last resort. It is at this point a further application should be considered, either before the same member of the judiciary by establishing ‘new facts and circumstances’ or by way of a fresh application in the Supreme Court.

The key case law

DPP v Harika [2001] VSC 237 – Meaning of unacceptable risk, show cause and overlap

DPP v Ghiller [2002] VSC 435 – Meaning of unacceptable risk, show cause

DPP v Mokbel (No.3) [2002] VSC 393 – Delay as exceptional circumstance

R v Nezif [2005] VSC 17 – combination of factors can ‘show cause’

DPP v Tong (2000) 117 A Crim 169; [2000] VSC 451 – no definition of exceptional circumstances

R v Sanghera [1983] 2 VR 130 – hearsay evidence admissible in bail hearing

Re Jack Zoudi [2006] VSCA 298 – bail pending appeal

Stephan Zade Abbott (1997) 97 A Crim R 19 – Combination of factors can constitute exceptional circumstances

R v Light [1954] VLR 152 – Common law presumption of bail

When bail can be granted?

Bail can be granted at any stage of the criminal process from the point of arrest through to the trial, sentence and final appeal.

What Happens at Court in Relation to Bail Procedure?

The bail procedure in Victoria is as follows, where the police informant or a bail justice have refused to grant bail, the Accused must be brought before a court following their arrest and interview for a remand hearing to occur. Discussions must then occur with the defence lawyer and the police prosecutor as to whether bail will be formally opposed. The first prize is always to convince the opposing side not to oppose the granting of bail.

The following general principles apply in relation to bail procedure in Victoria.

In general, the standard of proof is on the balance of probabilities.

The police informant or corroborator must be present (unless a nominal informant is appearing or it is agreed by both parties that the matter can proceed on the reading of the remand summary unless dealing with a Supreme Court application).

The court can consider any evidence that appears to be relevant and can take into account hearsay evidence (s.8(e) and R v Sanghera [1983] 2 VR). The court can make such enquiries “…of and concerning the Accused as the court considers desirable” (s.8(a) of the Bail Act 1977).

The prosecution presents its case setting out the reasons why bail is opposed, usually by calling the police informant. Defence are then provided the opportunity to cross examine any witnesses relied upon by the prosecution.

The prosecution must also inform the court what the relevant threshold for bail is, the three thresholds are, unacceptable risk, compelling reasons (now replacing “show cause) and exceptional circumstances. To understand more about the relevant thresholds, click the above links.

The police, usually through the police informant, will disclose to the court if the Accused has prior convictions or has previously failed to appear, as well as the circumstances of the current offending.

What if I am Pleading Not Guilty in relation to Bail?

At a bail hearing, the strengths and weaknesses of the prosecution case is only one relevant factor amongst many factors that must be considered in relation to bail. Defence lawyers are always at a disadvantage when trying to make out this ground because it is unusual for police to have disclosed all the evidence. An accused person can give evidence to assist their own application but cannot be cross-examined about the alleged offending. If the Accused was to inadvertently make a confession or admission at the bail hearing this will not be admissible at a later date.

See for example, R v Kathleen Therese MacBain (Unreported, County Court of Victoria, Kimm J, 10 October 2000) where the trial judge admitted into evidence confessions made by the Accused at her bail hearing. Later, the Court of Appeal held the confession should not have been admitted into evidence.

Unacceptable Risk

Presumption of bail, unless unacceptable risk 

The starting point and underlying fundamental common law presumption is that all persons should be granted bail (R v Light [1954] VLR 152). This accords with ss.21(2) and ss.21(6) of the Victorian Charter of Human Rights and Responsibilities 2006.

A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act. This means if schedule 1 (Exceptional Circumstances Category) & schedule 2 (Show Compelling Reasons) do not apply, then the entitlement to bail provision is the sole determining factor as to whether an accused is granted bail.

The starting presumption is that the Accused should be granted bail unless the prosecution can establish that the Accused poses an unacceptable risk. The test is contained in section 4E of the Bail Act 1977.

BAIL ACT 1977 – SECT 4E

Unacceptable risk test

(1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that—

(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

Example

An unacceptable risk that the Accused, if released on bail, would commit a family violence offence

(2) The prosecutor bears the burden of satisfying the bail decision maker—

(a) as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b) that the risk is an unacceptable risk.

(3) In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must—

(a) take into account the surrounding circumstances; and

Note

The term surrounding circumstances is defined in section 3. Also the bail decision maker is required to take into account other matters if the Accused is an Aboriginal person or a child. See sections 3A and 3B.

(b) consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.

Why has granting bail become so much harder in Victoria since the July 2018 changes?

The categories to which “show compelling reasons” and “exceptional circumstances” apply have greatly increased which means that the categories in relation to entitlement to bail have decreased.

The first categories are ‘reverse onus’ tests, that is the Accused person must prove either exceptional circumstances or compelling reasons exist and then put the prosecution to proof in relation to unacceptable risk.

Defendants captured under the reverse onus tests are less likely to get bail than those just facing unacceptable risk.

Burden of proof in relation to unacceptable risk

The prosecution has the burden of proving or establishing that the Accused is an unacceptable risk. It is not up to the Accused to prove he or she is an acceptable risk. There is no set standard of proof.

The bail decision maker must refuse to grant bail if they are satisfied there is an unacceptable risk that the Accused person would endanger the safety or welfare of any person, commit an offence, interfere with a witness, obstruct the course of justice or fail to surrender into custody.

What are the factors that go to addressing an unacceptable risk?

The factors that go to addressing risk depend on the risk alleged by the prosecution per section 4E(1)(a). Some examples are:

• Surety
• Stable accommodation
• Stable employment
• Drug and alcohol treatment
• Mental health treatment
• Residential rehabilitation
• Strict bail conditions
• Compliance with bail in the past

The legislation also provides some guidance in deciding whether the Accused is an unacceptable risk. The bail decision maker must consider all relevant matters, per s.3AAA, including:

• The nature and seriousness of the alleged offending, including whether the Accused is charged with a serious example of the particular offence;
• The strength of the prosecution case;
• Any criminal history of the Accused;
• The history of any previous grants of bail;
• If at the time of the alleged offending the Accused was: on bail, subject to a summons for another offence, waiting for another trial, on parole, or subject to a CCO or other offence;
• Whether there are currently any family violence orders or safety orders against the Accused;
• The Accused’s personal circumstances, associations, home environment and background;
• 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.
• The known or likely view of the victim to the Accused being granted bail;
• Time likely to be spent in custody if bail is not granted;
• Likely sentence imposed if the Accused is found guilty;
• Any expression of public support for a terrorist act or organisation by the Accused, or the provision of resources by the Accused to such a terrorist organisation.

If the bail decision maker thinks the Accused is an “unacceptable risk” then bail shall be refused per section 4E.

As can be seen from the extensive list of considerations above, the bail decision maker must take a holistic look at the situation and circumstance of the Accused in order to determine if bail must be granted or refused.

Exceptional Circumstances

Exceptional Circumstances and Bail in Victoria:

Section 4A of the Bail Act 1977 states that a bail decision maker must refuse bail for a person accused of a schedule 1 offence unless satisfied that ‘exceptional circumstances’ exist that justify the grant of bail. This makes the test a ‘reverse onus’ test, that is, the accused person bears the burden of satisfying the judiciary as to the existence of exceptional circumstances.

What are exceptional circumstances?

Exceptional circumstances are not specifically defined in the Bail Act 1977, but unlike show compelling reasons, exceptional circumstances as a threshold for bail has been around for a long time. There are numerous categories and cases decided in respect of determining what can amount to exceptional circumstances. It is often the case that a combination of one of more of the factors listed below will amount to exceptional circumstances.

•  Re Gloury-Hyde [2018] VSC 393 (Combination of weak prosecution case, personal circumstances, absence of factors showing that the applicant was an unacceptable risk)
• COVID-19 Tong [2020] VSC 141 (26 March 2020)
• Inordinate Delay (common in drug matters or fraud investigations) El Nasher v DPP [2020]VSCA 144 (4 June 2020)
• Victim Forgiveness (Jedson [2004] VSC 345)
• Hardship (ill health and age) (Fisher[2001] VSCA 164)
• Exceptional Family Hardship (Markovic 2010 VSCA 105)
• Assisting Authorities (Mr Z [2005] VSC 90)
• Extreme Provocation (Stavreski [2004] VSC 16)
• Youth always but particularly when dealing with a child  see 3B(1) of the Bail Act Re JO[2018] VSC 438
• Character
• Different offending
• More Minor offending (R v Newman and Turnball)(1997 1 VR 146)
• Stable accommodation
• Surety
• Court supported bail programs (CISP & CREDIT)
• Other treatment programs
• Stable employment
• Supervision, family or otherwise
• Prior history or lack there of
• Strength of the police case
• Previous compliance with bail
• Any vulnerability
• View of the complainant (if relevant)
• Likely sentence to be imposed

Surrounding Circumstances

Like all bail applications, other factors the bail decision maker must take into account are the ‘surrounding circumstances’.

For more on what amounts to the surrounding circumstances see the Bail Act under section 3AAA.

In terms of the offences that place an accused person in an exceptional circumstances category, they are defined by schedule 1 of the Bail Act 1977.

SCHEDULE 1 OFFENCES UNDER THE BAIL ACT 1977 (EXCEPTIONAL CIRCUMSTANCES) 

1.     Treason
2.     Murder

OTHER CHARGES OR ON CCO

3.     A Schedule 2 bail offence that is alleged to have been committed by the accused—

(a) while on bail for any Schedule 1 bail offence or Schedule 2 bail offence; or
(b) while subject to a summons to answer to a charge for any Schedule 1 bail offence or Schedule 2 bail offence; or
(c) while at large awaiting trial for any Schedule 1 bail offence or Schedule 2 bail offence; or
(d) during the period of a community correction order made in respect of the accused for any Schedule 1 bail offence or Schedule 2 bail offence or while otherwise serving a sentence for any such offence; or
(e) while released under a parole order made in respect of any Schedule 1 offence or Schedule 2 offence.

SERIOUS VIOLENCE

4.     Aggravated Home Invasion (An offence against section 77B of the Crimes Act 1958)
5.     Aggravated Car Jacking (An offence against section 79A of the Crimes Act 1958)

DRUG OFFENCES

6.  An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981—

a) Large Commercial Quantity Drug Trafficking (Section 71)
b) Commerical Quanity Drug Trafficking (Section 71AA)
c) Cultivation of Cannabis in a large Commercial Quantity (250kg, can be weighed wet, section 72).
d) Cultivation of Cannabis in a Commercial Quantity (25kg, can be weighed wet, section 72A).
e) Conspiracy to commit an offence contained in paragraph (a), (b), (c) or (d) (section 79)

7.  Large Commercial Quantity (As defined by the DPCS state legislation) in respect of an offence under sections 302.2, 302.3, 303.4, 303.5, 304.1, 304.2, 305.3 or 305.4 of the Criminal Code of the Commonwealth.
8.  Commercial Quantity (As defined by the DPCS state legislation) in respect of an offence under sections 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code of the Commonwealth
9.  Commercial Quantity (As defined by the DPCS state legislation) in respect of an offence under sections 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth

OTHER OFFENCES

10.     Terrorism Offences under 4B(1) or 21W of the Terrorism (Community Protection) Act 2003 .
11.     An offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in any other item of this Schedule.

If an accused person fits into schedule 1 in relation to bail the court must first be satisfied that exceptional circumstances exist which justify the grant of bail. As indicated The Bail Act 1977 (Vic) does not define what “exceptional circumstances” but a number of factors and cases have been identified at the beginning of this article.

It is important to note that even if an Accused shows exceptional circumstances, it is still possible for the court to refuse bail on the basis that the Accused is, an unacceptable risk, per the operation of section 4A and 4B of the Bail Act 1977.

BAIL ACT 1977 – SECT 4A

Schedule 1 offences—step 1—exceptional circumstances test

1. A bail decision maker must refuse bail for a person accused of a Schedule 1 offence unless satisfied that exceptional circumstances exist that justify the grant of bail.
2. The accused bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances.
3. In considering whether exceptional circumstances exist, the bail decision maker must take into account the surrounding circumstances.

Note

The term surrounding circumstances is defined in section 3. Also the bail decision maker is required to take into account other matters if the accused is an Aboriginal person or a child. See sections 3A and 3B.

4. If the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail, the bail decision maker must then move to step 2—unacceptable risk test.

BAIL ACT 1977 – SECT 4B

Schedule 1 offences—step 2—unacceptable risk test

1. If at step 1 (section 4A) the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail for a person accused of a Schedule 1 offence, the bail decision maker must apply the unacceptable risk test.
2. For the application of the unacceptable risk test, the prosecutor bears the burden of satisfying the bail decision maker—
   (a)     as to the existence of a risk of a kind mentioned in section 4E(1)(a); and
   (b)     that the risk is an unacceptable risk.
3. On applying the unacceptable risk test, the bail decision maker must refuse bail if required to do so by section 4E.

If you have read this article, then you now understand the complicated considerations attached to any exceptional circumstances bail application.

What amounts to exceptional circumstances has not been specifically identified by the courts.

If an accused person is on remand in relation to a matter that puts them in an ‘exceptional circumstances’ category, then you need to engage specialist lawyers that understand the bail laws.

It is important to remember that you only get one shot at a represented bail application unless you can show new facts and circumstances.

Further Bail Applications and Supreme Court Bail

New Facts and Circumstances Bail

Should bail be initially refused by a Magistrate, the Accused can make a second application for bail in the Magistrates’ Court. However, under s.18AA, the court  will only hear the matter if the Accused was either not legally represented at the first bail hearing, or new facts and circumstances have arisen since the first application.

The act states that it is preferable that the further application go before the same Judge or Magistrate that heard the original application.

Supreme Court Bail

The Accused can also invoke the inherent jurisdiction of the Supreme Court to make a fresh bail application and does not have to show new facts or circumstances. This is a hearing de novo (new hearing) and it is not a review of the earlier bail decision.

S.18AC allows the DPP to appeal against a range of bail decisions.

If you or a loved one has been denied bail in the first instance, contact our office so we can assist you in getting a further application listed, either before the same Magistrate or Judge that denied bail initially or directly in the Supreme Court. 

 Charg: Commit Indictable Offence Whilst on Bail

Have you been charged with the Offence to Commit Indictable Offence Whilst on Bail?

With the assistance of an expert criminal lawyer, you may be able to mount an effective defence to this charge. You should consider the following questions before telling a court how you intend to plead to this charge:

Can the prosecution establish all elements of the offence? Were you under a bail agreement at the time of the alleged offence? Or is this in dispute?

For more information on the charge please read below.

The offence

Section 30B of the Bail Act Victoria 1977.

The prosecution must prove:

1. The defendant was under a bail agreement; and
2. Whilst under that bail agreement the defendant committed an indictable offence.

The maximum penalty

The maximum penalty is 30 penalty units or 3 months imprisonment.

Where will my case be heard?

A charge for the Offence to Commit Indictable Offence Whilst on Bail will be heard in the Magistrates’ Court.

What to do next?

If you have been charged with the Offence to Commit Indictable Offence Whilst on Bail, contact an experienced criminal lawyer urgently to begin preparation of your defence. Call us today.

The legislation

Section 30B Offence to commit indictable offence whilst on bail

An accused on bail must not commit an indictable offence whilst on bail.

Penalty: 30 penalty units or 3 months imprisonment.

Charge: Contravene Certain Conduct Conditions

Have you been charged with the Offence of Contravening Certain Conduct Conditions of your bail?

If so, there are some questions you should consider that may be useful in developing a defence to your charge.

Can the prosecution establish all elements of the offence? Were you aware of the conditions of your bail? Can you establish a reasonable excuse for contravening a condition of your bail?

It is highly recommended that you engage a specialist in criminal law to help you with your defence. For more information on the charge, please read below.

The offence

Section 30A of the Bail Act 1977.

The prosecution must prove:

1. The defendant was subject to a bail agreement; and
2. The defendant breached a condition of that bail agreement.

The maximum penalty

30 penalty units or 3 months imprisonment.

Where will my case be heard?

A charge of the Offence to Contravene Certain Conduct Conditions will be heard in the Magistrates’ Court, County Court or Supreme Court depending on the progress of the case.

What to do next?

You should consider contacting an experienced criminal lawyer immediately to begin preparing the best possible defence on your behalf. Call us, and speak with an expert in criminal law today.

The legislation

Section 30A Offence to contravene certain conduct conditions

1. Subject to subsection (2), an accused on bail in respect of whom any conduct condition is imposed must not, without reasonable excuse, contravene any conduct condition imposed on him or her.

Penalty: 30 penalty units or 3 months imprisonment.

(2) Subsection (1) does not apply to contravention of a conduct condition requiring the accused to attend and participate in bail support services.

Charge: Fail to Answer Bail

Have you been charged with Failure to Answer Bail?

If so, there are several questions you will need to consider:

Can the prosecution establish all elements of the offence? Did you have a legitimate excuse for failing to comply with your bail conditions? Were you unaware of the conditions imposed by your bail agreement?

If you are found guilty of this offence you could be facing a prison term. It is highly recommended that you engage a specialist criminal lawyer to help you answer the above questions, discuss with you how you intend to plead, and mount a defence on your behalf.

For more information, please read below.

The offence

Section 30 of the Bail Act 1977.

The prosecution must prove:

1. The defendant was on bail;
2. The defendant was required to surrender themselves in accordance with that bail agreement; and
3. The defendant failed to do so.

The maximum penalty

The maximum penalty for a Failure to Answer Bail is 12 months imprisonment.

Where will my case be heard?

A charge of Failure to Answer Bail will be heard in the Magistrates’ Court County Court or the Supreme Court depending on the type of charge and stage of hearing.

What to do next?

If you have been charged with failure to answer bail you should contact an experienced criminal lawyer immediately to begin preparation for your matter. Make sure you leave adequate time to prepare a strong defence on your behalf.

The legislation

Section 30 Failure to answer bail

1. Any person released on bail who fails without reasonable cause, the proof whereof lies upon him, to attend in accordance with his undertaking of bail and surrender himself into custody shall be guilty of an offence against this Act.

Penalty: Imprisonment for twelve months.

2. In any proceedings against a person for an offence against this section—

(i) a document purporting to be or to be a copy of an undertaking of bail entered into by the accused and to be certified by an officer of the court having the custody of the document to be the undertaking or a copy of the undertaking with which it is alleged in the proceedings that the accused has failed to comply shall be prima facie evidence of the entry of the accused into the undertaking and of the conditions of the undertaking; and

(ii) a document purporting to be or to be a copy of a declaration of forfeiture made by a court of an undertaking of bail entered into by the accused and certified by an officer of the court having the custody of the document to relate to the undertaking of bail with which it is alleged in the proceedings that the accused has failed to comply shall be prima facie evidence of the failure of the accused to attend in answer to his bail and surrender himself into custody.

3. In any proceedings against a person for failing to answer bail for attendance at a trial a certificate purporting to be signed by the Director of Public Prosecutions as to the giving of notice of the time and place fixed for the conduct of the trial shall be prima facie evidence of the service of the notice.

Charge: Indemnifying Surety

Have you been charged with Indemnifying a Surety?

With the aid of an expert criminal lawyer, you may be able to raise a number of defences against such a charge.

Can the prosecution establish all the necessary parts of the offence? Were you aware the other person was a surety? Did you intend to indemnify a person against any liability they may incur as a surety?

For more information on this charge, please continue reading below.

The offence

Section 31 of the Bail Act Victoria 1977.

The prosecution must prove:

1. The defendant indemnified or agreed with another person to indemnify that person from liability; and

2. That the liability incurred was a result of being a surety.

The maximum penalty

The maximum penalty is 15 penalty units or imprisonment for 3 months.

Where will my case be heard?

A charge for Indemnifying Surety will be heard in the Magistrates’ Court.

What to do next?

The offence of Indemnifying Surety carries severe penalties, including imprisonment, if proven. If you have been charged you should contact an experienced criminal lawyer today to allow adequate time to prepare the best possible defence to be raised on your behalf.

The legislation

Section 31 Indemnifying surety

1. Any person who indemnifies another person or who agrees with another person to indemnify that other person against any liability which that other person may incur as a surety to secure the attendance in answer to bail and the surrender to custody of a person accused or convicted of or under arrest for an offence he and that other person shall be guilty of an offence.

Penalty: 15 penalty units or imprisonment for three months.

2. An offence is committed against subsection (1) whether the agreement is made before or after the person to be indemnified becomes a surety and whether or not he becomes a surety and whether the agreement contemplates compensation in money or money’s worth.