The Law Handbook 2024

206 SECTION 3: Fines, infringements and criminal law Surrounding circumstances: Parity Parity (i.e. that a co-offender has been granted bail) may be relevant ‘but it must be established that things are equal as between the co-offenders’ (see Re Abbott (bail application) [1997] VSC 497; Re Wilson (bail application) [2006] VSC 178). This is rare. Parity cannot be used to obtain bail where the decision to grant bail to the co-offenders was ‘manifestly wrong’ (ibid). In Re Zreika [2020] VSC 648, the court considered parity and held that where an accused facing the same charges has been bailed in circumstances where the evidence against them is significantly stronger, it is difficult to say the co-accused should have bail refused. Surrounding circumstances: The need to prepare a defence The need to prepare a defence has been rejected as a relevant factor (see Re Majeric (unreported, VSC, 10 July 1998)); at other times, it has been accepted as relevant (see Re Botha [1998] QSC 152). It may also be a relevant factor when combined with other factors. Surrounding circumstances: Bail applicant’s age, health or vulnerability The age or health of the bail applicant is not relevant of itself (see R v Ryan (1961) 78 WN (NSW) 585) but may be relevant in combination with other factors (see Re Ahmad [2003] VSC 209). An applicant’s youth (depending on the individual facts) may be a relevant factor that, in combination with others, may amount to ‘exceptional circ­ umstances’ being shown. See Re Wells [2008] VSC 29 (14 February 2008), in which Justice Lasry considered the fact of the bail applicant’s ‘relative youth’ and lack of prior offending as relevant to the question of demonstrating exceptional circumstances. In Re Gloury-Hyde [2018] VSC 393, the Supreme Court noted that the right to liberty is particularly important when the applicant is young and has physical, psychological and cognitive problems. The nature and extent of these problems and their impact on the applicant’s functioning, when considered with other factors (e.g. the availability of treatment), may ‘establish exceptional circumstances justifying a grant of bail’ (at [35]). Being exposed to serious, repeated violence while on remand is a special vulnerability that may constitute an exceptional circumstance (see Re Logan [2019] VSC 134 at [67]–[69]). The existence of significant medical conditions that may not receive proper treatment in custody may establish exceptional circumstances (see Re Nicholson [2021] VSC 221). Surrounding circumstances: Bail applicant’s need to attend drug rehabilitation/access treatment The bail applicant’s need to attend drug rehabilitation and/or access treatment is not of itself exceptional. However, it is a matter that can be taken into account when it can be demonstrated that it is necessary, and that the bail applicant cannot obtain the treatment while on remand. See the comments of Justice Hollingworth in Tran (bail application) [2008] VSC 191 (23 May 2008), where the desirability of an accused receiving intensive drug rehabilitation treatment was relevant to showing cause (although the principle applies equally to exceptional circumstances applications). In some cases, the applicant’s alleged offending may be so serious that the inherent risk to the safety of members of the community of releasing the applicant into a treatment facility may not be justifiable (see Re Villani [2021] VSC 638). Surrounding circumstances: Bail applicant is a child Section 3B(1)(a) of the Bail Act requires all other options to be considered before a child is remanded in custody. The relevance of section 3B(1)(a) and the age of a bail applicant was considered in Re JO [2018] VSC 438 by Justice T Forrest. Justice Forrest noted that while the burden of proving exceptional circumstances is a heavy one, the age of a bail applicant is a significant factor in favour of a child for two reasons. First, children have ‘special status’ under the Bail Act. Second, an assessment of exceptional circumstances has to be ‘viewed through the prism of section 3B(1)(a)’. This means that circumstances that might not be exceptional for an adult offender might be considered to be exceptional for a child. This also means that section 3B(1)(a) makes any determination under the Bail Act – including whether exceptional circumstances are established – a different exercise in the case of a child. See also Re TP [2018] VSC 748 (at [48]–[51]) (the case of a child bail applicant charged with serious offending) and Re DB [2019] VSC 53 (at [47]) (a child bail applicant aged 13). In the context of COVID-19, see Re JK [2020] VSC 10 at [21] and [33], where the court held that