When preparing for bail applications, it is important to look for precedent established by higher courts to support your submissions as to why bail should be granted in your particular case. Here are some examples of useful Victorian Supreme Court bail decisions which should be referred to where appropriate.
Show Compelling Circumstances
‘Show Compelling Circumstances’ is a new threshold which was introduced into the Bail Act 1977 in 2018. Depending on the crime/s that the accused is charged with, he or she may be required to show compelling circumstances as to why their remand in custody is not justified.
The Supreme Court of Victoria in the seminal case of Re Ceylan  VSC 361 said that ‘compelling circumstances is something ‘forceful and therefore convincing. A balance of the applicant’s personal factors must compel the conclusion that the applicant’s detention is not justified’.
Show Exceptional Circumstances
‘Exceptional circumstances’ is the highest threshold that an accused must show if he or she is going to be granted bail. This will depend on the offences the accused is charged with and if the accused committed further offences whilst already on bail for other offences.
‘Exceptional circumstances’ has been 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’ (Re Maloney, unreported judgment, Supreme Court of Victoria, Vincent J, 31 October 1990).
In deciding if an accused has shown ‘exceptional circumstances’, 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’ (Re CT  VSC 559).
The Court Integreated Service Program (CISP) is a rehabilitative program offered to assist people with drug addictions whilst on bail. For more information on CISP please refer to our CISP page.
The Supreme Court of Victoria in Re Kele  VSC 159 and Re McLEod  795 granted bail because CISP was available. The Court in both of these cases took comfort in knowing that the accused were going to receive treatment for their drug addictions and a level of supervision.
Accused will Spend More TIme on Remand than the Ultimate Sentence
A bail decision maker must consider if an accused person will spend longer time on remand than the sentence he/she will receive if ultimately found guilty of the charges.
In Re Dillon  VSC 80 the Supreme Court of Victoria cited the Court in Re Magee  VSC 384 which said ‘it is highly significant that the applicant was unlikely to be sentenced to a custodial term longer than that already served on remand’.
Availability of a Residential Rehabilitation Clinic
Courts are generally open to promoting an accused’s rehabilitation because it benefits the accused individually and the greater community.
The Victorian Supreme Court granted bail in Re Ezzy  VSC 4 and Re AMR  VSC 186 because the applicants were able to enter residential rehabilitation clinics.
Young People Enrolled in School
Young people accused of wrongdoing will increase their prospect of bail if they are enrolled in school because courte are generally reluctant to interfere with a young person’s access to education.
The Courts in Re BKT  VSC 240 and Re HS  VSC 410 granted bail because the accuseds were enrolled in TAFE.
After an accused has satisfied a bail decision maker that compelling or exceptional circumstances exist justifying bail, the Prosecution will try to demonstrate that the accused poses an unacceptable risk of re-offending and should not be bailed. There are some cases which a defence lawyer should draw to the Court’s attention when considering unacceptable risk.
In Re Asmar  VSC 487 the Supreme Court acknowledged that predicting future criminal behaviour if an accused is granted bail is notoriously difficult.
In Re Magee  VSC 384 the Supreme Court decided 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’.