Exceptional Circumstances in a Contested Bail Application

This is a case study on showing exceptional circumstances in a contested bail application.

The Bail Act was amended in 2018. A significant consequence of the amendments is that bail is much more difficult to achieve for a person accused of committing certain offences whilst already on bail for other offences. Our lawyer who represented this client at the Broadmeadows Magistrates’ Court, has written extensively on the amendments to bail here: Bail – The new Everest of Criminal Law.

What is alleged to have occured?
We had a client who had to satisfy the magistrate that ‘exceptional circumstances’ exist as to why his remand in custody was not justified. This is the highest threshold that a person applying for bail must achieve. It is the same threshold a person accused of murder, large scale drug offences, and other serious offences must demonstrate.

The client was not charged with any of the offences mentioned above (far from them). But he was elevated into the exceptional circumstances category because he was alleged to have committed an offence against the Bail Act whilst on bail for an offence contained in schedule 2 of the Bail Act.

What happened at court?
The offences the client was charged with were:

In this case, exceptional circumstances in a contested bail application were shown by relying on a combination of factors such as:

  • The strength of the Prosecution case
  • Stable accommodation
  • The availability of support services
  • The availability of employment
  • The vulnerability of the accused due to mental health issues
Our strategy was to rely on our client’s intellectual disability and the availability of support services and stable accommodation. We gathered helpful material from the client’s Department of Health and Human Services (‘DHHS’) case worker. This was done to evidence the client’s intellectual disability. Luke also spoke with the client’s mother about attending court to give evidence about the support she can offer.

Cross Examining the Informant
The prosecution commenced proceedings by calling the investigating police officer (‘the Informant’) to give evidence from the witness box. The informant gave evidence that there is a risk that the client will further assault the victim, will fail to attend his court hearings, and that he has disregard for the police.

After the informant gave evidence in chief, our lawyer was given an opportunity to cross-examine her. The cross-examination strategy was part of showing that exceptional circumstances in this contested bail application existed. It showed the court that:

  • there is an intervention order in place protecting the victim
  • there was a period of 6 days between the alleged assault and our client being arrested by the police, during which time the client did not make contact or assault the victim again
  • the client did not previously fail to attend court as many times as the police initially alleged
  • the client had stable accommodation available to him
  • the client co-operated with the police during his interview
After the prosecution closed their case, our lawyer called the client’s mother to give evidence from the witness box. As an aside, when leading with a witness through their evidence, we are mindful of the fact that we are dealing with a person who is nervous, not familiar with court procedures and etiquette, and is emotional.

Therefore our lawyer kept the questions brief, used plain English, and spoke in a calm tone to reduce the witness’ stress. From the mother, the following was confirmed:

  • the client has stable accommodation
  • the client has an intellectual disability
  • the client is linked in with the DHHS for support
  • the client will be accompanied to court by his mother, and is supervised at home by his mother who is unemployed
What was the result?
Exceptional circumstances in this contested bail application was successfully shown. After hearing submissions made on the client’s behalf, her Honour agreed to release the client on bail.

Elements of Commit Indictable Offence Whilst on Bail:
  • The accused was on bail.
  • The accused committed an indictable offence during this period.
Related case studies
DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 04/10/2019