The Law Handbook 2024

208 SECTION 3: Fines, infringements and criminal law 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 bail applicant is an unacceptable risk, then bail must be refused. Concept of ‘compelling reasons’ The phrase ‘compelling reasons’ is not defined in the Bail Act. In Re Ceylan [2018] VSC 361 at [47], Justice Beach considered the interpretation by courts of the word ‘compelling’ in other contexts. His Honour said that a ‘… compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified. It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional’. At [46], His Honour observed that determining whether an applicant shows a compelling reason involves considering all the relevant circumstances, including the strength of the prosecution’s case, the applicant’s personal circumstances and their criminal history. A synthesis of all the factors must compel the conclusion that detention is not justified. His Honour also noted that the exceptional circumstances test is plainly intended to be more difficult than the compelling reasons test [45]. In Re Alsulayhim [2018] VSC 570 (at [28]), the court held that the Bail Act’s amended language in section 4C that requires an applicant to show there is a ‘compelling reason’ that ‘justifies the grant of bail’ compared to the former language that ‘detention in custody is not justified’ does not change the Re Ceylan test or its application. A compelling reason may be established by a combination of circumstances (see Re Koshani [2019] VSC 678 at [6]). In the following cases considered by the Supreme Court, it was established that the bail applicant showed a compelling reason: • the bail applicant was remanded in custody longer than any likely sentence of imprisonment (see Re Johnstone [No 2] [2018] VSC 803 at [15], [18–19]); • the bail applicant would be vulnerable in custody and their offending was at the lower end of serious­ ness (see Re Walker [2018] VSC 804 at [49–50]); • granting bail was likely to be in the community’s interest (see Re Gaylor [2019] VSC 46 at [35–41] where the court set out matters important to finding the existence of this factor); • the bail applicant was a youth or a child and had special vulnerability (see Re JM [2019] VSC 156 at [49–51], [62], [59–60] where the court held that observations in Re JO [2018] VSC 438 about children facing the exceptional circumstances test also apply to the compelling reason test in cases involving a child bail applicant). Compelling reasons and surrounding circumstances 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 a compelling reason exists (s 4C(3) Bail Act). 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 (see s 3AAA (surrounding circumstances) Bail Act at www.legislation.vic.gov.au) . See also ‘Surrounding circumstances’ above, in the context of the exceptional circumstances threshold. Unacceptable risk Bail must be refused if the court is satisfied (with the onus on the prosecution to prove this contention) that there is an ‘unacceptable risk’ that the accused person, if released on bail, would: • fail to surrender themselves into custody in answer to their bail; • commit an offence while on bail; • endanger the safety or welfare of any person; or • interfere with a witness or otherwise obstruct the course of justice in any matter (s 4E Bail Act; flowchart 3 in s 3D(4)). It is for the prosecution to prove that an applicant represents an unacceptable risk. An applicant is not required to establish an absence of unacceptable risk (see Re LD [2019] VSC 457). ‘Unacceptable risk’ is not defined in the Bail Act. A bail decision-maker must take into account the ‘surrounding circumstances’ as set out in section 3AAA of the Bail Act. A bail decision-maker