Some Recent Cases on Bail

Using Case Law in Bail Applications

When preparing a bail application in Victoria, identifying relevant decisions of higher courts is an essential part of building a strong set of submissions. The Supreme Court of Victoria regularly determines bail applications , particularly in matters involving the exceptional circumstances and compelling reasons thresholds , and its decisions provide important guidance on how the Bail Act 1977 (Vic) is applied in practice.

The Bail Act 1977 (Vic) provides a two-step process for bail applications in more serious matters. In the first step, an accused must demonstrate either compelling reasons (for Schedule 2 offences under s 4C) or exceptional circumstances (for Schedule 1 offences under s 4A) why their remand in custody is not justified. If that threshold is satisfied, the second step requires the bail decision maker to assess whether there is an unacceptable risk under s 4E of the Act.

The following are significant Victorian Supreme Court bail decisions that should be considered when preparing submissions, depending on the circumstances of the case.

The Show Compelling Reasons Test (s 4C)

Under s 4C of the Bail Act 1977 (Vic), a person charged with a Schedule 2 offence must show compelling reasons why their detention in custody is not justified before bail can be granted.

In Re Ceylan [2018] VSC 361, the Supreme Court held that a compelling reason would likely be shown if there existed “forceful, and therefore convincing” reasons showing that, in all the circumstances, the continued detention of the applicant in custody was not justified. The Court confirmed that a synthesis of all relevant factors , including the strength of the prosecution case, personal circumstances, and criminal history , must compel the conclusion that detention is not justified. 

This case is authority for the proposition that compelling reasons is not an insurmountable threshold, but it requires more than mere inconvenience or standard personal circumstances. A combination of personal factors , employment, family responsibilities, health, ties to the community, and the relative strength or weakness of the prosecution case , must be weighed together.

The Exceptional Circumstances Test (s 4A)

Under s 4A of the Bail Act 1977 (Vic), a person charged with a Schedule 1 offence , the most serious category under the Act , must show exceptional circumstances before bail can be granted. This is the highest threshold under the Bail Act.

In Re Maloney (unreported, Supreme Court of Victoria, Vincent J, 31 October 1990), “exceptional circumstances” was defined as “a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.” This definition makes clear that exceptional circumstances is not a purely personal test , the strength of the prosecution case is directly relevant.

In Re CT [2018] VSC 559, the Court confirmed that in deciding whether exceptional circumstances exist, the court will look at “issues concerning the strengths or weaknesses of the case, undue delay in bringing the matter to trial, or unusual features of the police investigation.”

These cases demonstrate that a successful application under s 4A requires a careful and detailed assessment of both the case against the accused and their personal circumstances. Neither limb alone is generally sufficient.

CISP – Court Integrated Services Program

The Court Integrated Services Program (CISP) is a rehabilitative support program available to people on bail who have identified drug, alcohol, or mental health needs. CISP provides case management, referrals, and support to assist participants in addressing underlying issues and complying with their bail conditions. Availability of a CISP placement has been accepted by the Supreme Court as a relevant factor in favour of granting bail.

In Re Kele [2018] VSC 159, the Supreme Court granted bail in circumstances where CISP was available to assist the accused with a drug addiction, the Court taking comfort in the level of supervision and treatment that would be provided during the proceeding.

In Re McLeod [2018] VSC 795, the Supreme Court similarly granted bail in circumstances where CISP support was available, again on the basis that treatment for drug addiction and a level of ongoing supervision would be in place.

These cases illustrate the importance of identifying and arranging CISP support prior to a bail application where drug, alcohol, or mental health issues are relevant to the accused’s circumstances.

Time Already Served on Remand

A bail decision maker must take into account the surrounding circumstances under s 3AAA of the Bail Act 1977 (Vic). One significant surrounding circumstance is whether an accused person is likely to serve longer on remand awaiting trial than the sentence they would ultimately receive if found guilty.

In Re Dillon [2019] VSC 80, the Supreme Court cited with approval Re Magee [2009] VSC 384, in which the Court stated: “it is highly significant that the applicant was unlikely to be sentenced to a custodial term longer than that already served on remand.” This principle reflects the fundamental importance of not imprisoning a person, in effect, for longer than their ultimate sentence before they have even been found guilty.

This consideration is particularly relevant in matters where there has been significant delay in bringing the case to trial, or where the likely sentence , if convicted , is modest in the context of the time already spent in custody.

Availability of Residential Rehabilitation

Courts are generally receptive to bail applications where the accused has secured a place at a residential rehabilitation clinic, on the basis that rehabilitation benefits both the individual and the broader community. Having a confirmed placement is a significant factor that can address concerns about the risk of reoffending.

In Re Ezzy [2018] VSC 4, the Supreme Court granted bail because the applicant was able to enter a residential rehabilitation program, the availability of structured treatment and supervision providing assurance to the Court.

In Re AMR [2018] VSC 186, the Supreme Court similarly granted bail where the applicant had secured a residential rehabilitation placement, again on the basis that the program would address the underlying issues contributing to the risk of offending.

Young People Enrolled in Education

Courts are generally reluctant to interfere with a young person’s access to education and have accepted enrolment in school or TAFE as a factor favouring the grant of bail, given the rehabilitative importance of continued participation in education.

In Re BKT [2018] VSC 240, the Supreme Court granted bail in part because the accused was enrolled in TAFE, the Court recognising the importance of continued education to the young person’s prospects of rehabilitation and reintegration.

In Re HS [2018] VSC 410, the Court similarly granted bail where the accused was enrolled in TAFE, taking into account the disruptive effect that remand in custody would have on the accused’s educational progress.

Unacceptable Risk (s 4E)

Even where an accused has satisfied the compelling reasons or exceptional circumstances threshold, bail may still be refused if the prosecution demonstrates that the accused poses an unacceptable risk of: committing a Schedule 1 or Schedule 2 offence; endangering the safety or welfare of any other person; interfering with a witness or otherwise obstructing the course of justice; or failing to surrender into custody in accordance with their bail undertaking (s 4E of the Bail Act 1977 (Vic)). 

In Re Asmar [2005] VSC 487, the Supreme Court acknowledged that predicting future criminal behaviour where an accused is granted bail is notoriously difficult, and the Court should not approach the task on the basis of an assumption that risk must be eliminated.

In Re Magee [2009] VSC 384, the Supreme Court held that “a citizen should not be detained arbitrarily because there is a real risk of him committing a further offence of a relatively minor nature; one that the criminal law will punish if committed.” This principle reflects the importance of proportionality in assessing unacceptable risk.

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