The Law Handbook 2024

202 SECTION 3: Fines, infringements and criminal law (exceptional circumstances), Re Ilpola [2020] VSC 578 (unacceptable risk), and Re JL [2020] VSC 785 (unacceptable risk). Bail notices The court admitting an accused person to bail must give the accused (and any sureties) a notice setting out the bail conditions. The court must also ensure that the accused understands the conditions and the consequences of not complying with them (s 17 Bail Act). Suppression orders The court can also make an order forbidding the publication of any information relating to a bail application (s 7 Bail Act). Grounds for refusing bail The general rule An accused person who is being held in custody is entitled to be granted bail unless a bail decision- maker is required by the Bail Act (s 4) to refuse bail. This presumption in favour of bail does not apply where the accused is charged with certain serious offences. There are two categories of such serious offences: 1 Schedule 1 ‘exceptional circumstances’ offences; 2 Schedule 2 ‘show compelling reason’ offences. An accused person charged with such an offence will be refused bail unless they can establish exceptional circumstances (s 4A) or show that a compelling reason exists (s 4C) that justifies bail being granted. It is for the accused person applying for bail to satisfy the bail decision-maker that exceptional circumstances or a compelling reason exists (see ss 4A(2), 4C(2)). The principles are summarised by Justice Bell in Woods v DPP [2014] VSC 1, although this decision refers to an applicant being required to ‘show cause’ why their detention in custody was not justified, which was the bail threshold before 21 May 2018 when the ‘show cause’ test was replaced by a requirement to ‘show a compelling reason’. If an accused person is charged with an offence that is both a schedule 1 and 2 offence, it is taken to be a schedule 1 offence (s 3AA). The applicable test for bail is to be determined by reference to the charges that are currently before the court, regardless of any agreement or negotiation about how the case will ultimately proceed (see Re Ebertowski [2019] VSC 676 at [4]). An accused person must be refused bail if there is an ‘unacceptable risk’ that, if granted bail, they will fail to appear, commit an offence, endanger the safety or welfare of any person or obstruct the course of justice or interfere with a witness (see s 4E). The onus is on the prosecution to establish unacceptable risk. Exceptional circumstances Overview An accused person who is charged with certain serious offences or who falls into certain categories must establish that they have ‘exceptional circumstances’ to be granted bail. These charges and categories are set out in schedule 1 of the Bail Act. In Re Matemberere [2018] VSC 762 at [29]–[30]), the court found that an accused person who is subject to an adjourned undertaking pursuant to section 75 of the Sentencing Act 1991 (Vic) (‘ Sentencing Act ’) (commonly referred to as ‘a bond’) is serving a ‘sentence’. This may have application in determining whether an applicant for bail is required to establish exceptional circumstances. Bail decision-making process for schedule 1 offences Since 1 July 2018, the Bail Act includes flow chart 1 (s 3D(2)), which sets out the key features of the decision-making process and is a guide to the steps a bail decision-maker is required to take in determining whether bail should be granted where an accused is charged with a schedule 1 offence. The test for a bail decision-maker when an accused is charged with a schedule 1 offence is a two-step test. The first step is to decide whether the bail applicant has demonstrated that exceptional circumstances exist (see s 4A; flowchart 1 in s 3D(2)). If the bail applicant has not demonstrated that exceptional circumstances exist, then bail must be refused. If the bail applicant has demonstrated that exceptional circumstances exist, then the bail decision-maker must move to the second step and decide whether the prosecution has established that the bail applicant is an unacceptable risk (see s 4B; flowchart 3 in s 3D(4)). If the applicant