The Law Handbook 2024

Chapter 3.6: How bail works 205 If there is a good argument that the charge on which an applicant is remanded is foredoomed to fail, that fact itself amounts to exceptional circum­ stances and necessitates a grant of bail (see Turner v Lill (No 2) [2021] VSCA 255). In many cases, the true extent and strength of the case against an applicant will be beyond the power of the bail decision-maker to determine given that many applications are heard at an early stage in the proceedings (see Re AM [2020] VSC 569). A court is not required to take the strength of the prosecution case at its highest. It is one factor to be considered along with all the other surrounding circumstances ( Re ML [2022] VSC 76). Where an applicant for bail submits there are “triable issues” it is not the role of the court in a bail application to try such issues ( Re Hoang [2022] VSC 135). Surrounding circumstances: Likely sentence The possibility that an applicant for bail – if convicted of the offences they are charged with – may be sentenced to a term of imprisonment that is less than the period they have already spent on remand may be an exceptional circumstance (see Re DR [2019] VSC 151 at [56]; Cao v DPP [2015] VSC 198). It is an important factor but not determinative. It is one of many factors that must be considered ( Re Kelly [2022] VSC 232 at [73]). In Lennon [2016] VSC 239, the court considered the extent of any sentence that would be served before an application for leave to appeal, or the appeal itself, could be heard. Regarding COVID-19, see Re Broes [2020] VSC 128 at [41]; Re Tong [2020] VSC 141 at [34]; and Thomas v Kitching [2020] VSC 206 at [6], [92]. Surrounding circumstances: Hardship caused by detention Financial hardship caused by detention is a relevant factor (see Dale v DPP [2009] VSCA 212). In El Rahi (unreported, VSC, Beach J, 18 January 1996), financial hardship did not amount to exceptional circumstances, even when combined with the absence of priors, a good work record, and a supportive family. The hardship that imprisonment might impose on an applicant’s family is not an exceptional circumstance by itself (see Re Martinow [2019] VSC 118 at [57]). On the other hand, a combination of factors – such as weakness of the Crown’s case, the availability of employment, the health of the bail applicant or of their dependants, the age of the applicant, their personal circumstances, living situation, educational needs, absence of priors, evidence of good character, appropriate conditions of bail – can amount to exceptional circumstances (see Re Marinucci (bail application) [1992] VSC 373). Hardship caused by detention and COVID-19 In the context of COVID-19, the court in DPP (Cth) v Lee [2020] VSC 275, held that evidence must support a finding that onerous restrictions on remand would continue at high levels through the period of remand. The pandemic may be relevant in a bail application where correctional facilities have not been permitting visitors and education and rehabilitation opportunities have ben restricted (see Re JK [2020] VSC 160 at [19]–[26]; Thomas v Kitching [2020] VSC 206 at [5], [92]; Re JB [2020] VSC 184 at [40], [51]; Re JF [2020] VSC 250). In Re Ashton [2020] VSC 231, the court found that limitations on prison visits are not a barrier to the preparation of an accused’s defence given current exceptions for professional visits. The impact of the pandemic is constantly changing, and courts must assess these matters as best they can at the time they are hearing bail applications. In considering whether exceptional circumstances are established, it is appropriate for courts to take into account the impact of COVID-19 spreading in the prison system. That is, because an outbreak within the prison system would likely result in a lockdown that would make time in custody more onerous (see Re McCann [2020] VSC 138 at [40]; Re Broes [2020] VSC 128 at [39]). Surrounding circumstances: Bail applicant’s willingness to accept stringent bail conditions The willingness of a bail applicant to accept the imposition of stringent special conditions to meet the risk of failure to answer bail does not amount to exceptional circumstances. It is only a relevant factor once it has been determined that bail is justified (see Sullivan (unreported, VSC, Young CJ, 11 February 1982)). However, this factor in combination with others may constitute exceptional circumstances. In considering whether there are exceptional circumstances, it is also relevant that there is an absence of factors suggesting an applicant poses an unacceptable risk if granted bail with conditions (see Re Cugumo [2020] VSC 687).