The Law Handbook 2024

Chapter 3.6: How bail works 203 is an unacceptable risk, then bail must be refused (see ‘Unacceptable risk’, below). Treason and murder If the charge is treason , bail can only be granted by the Supreme Court (s 13(1) Bail Act). If the charge is murder , bail can only be granted by the Supreme Court or by a magistrate who commits the accused for trial (s 13(2)). In either case, the accused must establish exceptional circumstances. Exceptional circumstances The term ‘exceptional circumstances’ is not defined in the Bail Act. In Tang (1995) 83 A Crim R 593, Justice Beach found that the accused ‘bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail’. ‘Exceptional circumstances’ is not a matter of general definition, but as Justice Vincent stated in R v Moloney (unreported, VSC, 31 October 1990), ‘such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional’. In Re Gloury-Hyd e [2018] VSC 393, the court held that the concept of exceptional circumstances is elusive. However, in appropriate cases, exceptional circumstances may be a combination of: • the strength of the prosecution’s case; and • an applicant’s personal circumstances; and • an absence of factors that show an applicant poses an unacceptable risk of reoffending or to the community [30] (see also Rapsarda v The Queen [2022] VSC 192 at [42]). In Re CT [2018] VSC 559, the court held that exceptional circumstances may be established by a combination of factors involving the nature of the Crown’s case (including the strength of the case, any undue delay in bringing the matter to trial, any unusual features of the offending or of the investigation) and the applicant’s personal circumstance [65]. In Re CT , the court held that what is ultimately significant is that the circumstances, viewed as a whole, are exceptional to the extent that bail is justified, even considering the very serious nature of the charge (at [66]). For every case in this area, there is another case decided the other way. This is because each application is decided on the particular facts of that individual case and no two cases are exactly the same. The onus that rests on the accused is a heavy one. Parliament’s intention is clearly that people charged with these types of offences, particularly drug matters, should be denied bail unless they can demonstrate exceptional circumstances. How­ ever, the hurdle should not be set so high that it is impossible for an accused person in custody to achieve bail (see e.g. Re Pickersgill [2013] VSC 715). More recently, in Re CT [2018] VSC 559, the Supreme Court noted that having to show excep­ tional circumstances takes a case out of the norm and is a high hurdle for a bail applicant; however, it is not an impossible standard. In Re Reker [2019] VSC 81, Justice Beal – citing Justice Kay in DPP v Muhaidat [2004] VSC 17 – noted that the applicant needs to establish circumstances out of the ordinary that are exceptional to the ordinary circumstances that would otherwise entitle the applicant to bail. Justice Beal noted that ordinary circumstances include hardship to the accused or to their family and disruption to the accused’s work. In Re Ceylan [2018] VSC 361 (at [46]) and in Re Sipser [2019] VSC 362 (at [45]), Justice Beach accepted that proof by the applicant that they are not an unacceptable risk of breaching bail can be taken into account – in combination with other surrounding circumstances – for the purpose of attempting to establish exceptional circumstances (see Re Gloury-Hyde (No 1 ) [2018] VSC 393 at [30]). Bail is not a punishment; it serves to ensure that an accused person attends court to answer the charges. Surrounding circumstances Surrounding circumstances: An overview Since 1 July 2018, the Bail Act has required a bail decision-maker to take into account a wide range of relevant factors, described as ‘surrounding circumstances’, in considering whether exceptional circumstances exist (s 4A(3)). Under section 3AAA of the Bail Act, a bail decision-maker must, when considering the surrounding circumstances of a matter, take into account ‘all the circumstances that are relevant to the matter’, including, but not limited to, a wide range of factors set out in section 3AAA. Courts have considered a number of these factors and their significance in a bail application. Relevant factors to be considered under exceptional circumstances include: • any delay;