How bail works

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: An 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 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.

Concept of ‘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-Hyde [2018] VSC 393, the Supreme 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].

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. However, 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 exceptional 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] VSC81, JusticeBeal – citing JusticeKay in DPP v Muhaidat [2004] VSC17 – 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. JusticeBeal 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 also Re Gloury-Hyde (No 1) [2018] VSC 393 at [30]).

Bail is not a punishment but serves to ensure that an accused person attends court to answer the charges.

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) 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. 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;
• the strength of the Crown’s case;
• the likely sentence;
• any hardship caused by detention;
• the bail applicant’s willingness to accept stringent bail conditions;
• parity;
• the need to prepare a defence;
• the bail applicant’s age, health or vulnerability;
• the bail applicant’s need to attend drug rehabilitation/access treatment;
• the bail applicant is a child;
• Aboriginality;
• COVID-19.

Surrounding circumstances: Delay

Delay is only an exceptional circumstance if the delay is out of the ordinary, taking into account the usual listing delays (see Tang (1995) 83 A Crim R 593). (A two-year delay in a drug trafficking case was not exceptional in Mokbel v Director of Public Prosecutions [2002] VSC 127 but see later Mokbel v Director of Public Prosecutions (No 3) [2002] VSC 393.) In Alexopoulos (unreported, VSC, 23 February 1998), Justice Hampel referred to 12 months delay, as a rule of thumb, being inordinate.

In Hildebrandt v DPP [2006] VSC 198, Justice King referred to a period in custody of two years and eight months prior to trial (in onerous conditions) as being a significant factor in granting bail (though the applicant was not required to demonstrate exceptional circumstances).

Justice Lasry in Re Marijancevic [2010] VSC 122 held that a period of 22 months in custody between arrest and trial was in itself an exceptional circumstance. See also the comments of Justice Coldrey in DPP v Cozzi [2005] VSC 195; Re Biba [2020] VSC 566 (delay: two years and seven months); and Re Jiang [2021] VSC 148 (delay: three years).

Delay may also be a significant factor if the time spent on remand is likely to exceed the total effective sentence or the non-parole period (see Cao v DPP [2015] VSC 198) but it is only one of many factors that must be considered and is not on its own determinative (see Re Kelly [2022] VSC 232).

See also Lennon [2016] VSC 239, which considered the extent of any sentence that would be served before the application for leave to appeal, or the appeal itself, could be heard.

A significant lapse of time between the alleged offending and laying of charges may be particularly relevant in determining whether exceptional circumstances exit (see Re O’Shea [2019] VSC 791).

In Roberts v The Queen [2021] VSCA 28, the Court of Appeal considered a decision to refuse bail for an applicant who had been granted a retrial for two convictions for murder 18 years earlier. The court noted that many circumstances that constitute exceptional circumstances are such that ‘they are capable of rendering continued pre-trial incarceration. It is the need to prevent or mitigate future injustice that justifies a grant of bail’. The court held that simply establishing exceptional circumstances in a general sense is not sufficient and ‘there must be exceptional circumstances that justify the grant of bail and that the concept of justification is central’.

Delay and COVID-19

In Re Broes [2020] VSC 128 at [36], the court acknowledged that in response to the COVID-19 pandemic, courts have introduced measures that have caused significant delays. Accordingly, accused persons potentially face lengthy periods on remand awaiting the hearing of their matter.

In Re McCann [2020] VSC138 at [39], the court held that the delay in trials due to COVID-19 may establish exceptional circumstances. This is especially the case where such a delay is likely to lead to the accused spending longer on remand than they would in prison as a sentenced prisoner (see Re Broes [2020] VSC 128 at [41]; Re Tong [2020] VSC 141 at [33]–[34]; Thomas v Kitching [2020] VSC 206 at [6], [92]). It does not follow that exceptional circumstances will be established even in circumstances where the delay may be quite significant. The COVID-19 pandemic needs to be considered in light of all the surrounding circumstances (see Re El-Refei (No 2) [2020] VSC 164).

On the issue of delay, see also Re Ashton [2020] VSC 231 at [65]–[66] and Re Bochrinis [2020] VSC 411 at [8]. It should not be assumed that the pandemic will cause significant delay. There must be evidence to support such a finding (see DPP (Cth) v Lee [2020] VSC 275 at [93]–[99]).

Surrounding circumstances: Strength of the Crown’s case

Where it may be assessed, the strength of the Crown’s case is a relevant factor to consider (see DPP (Vic) v Cozzi [2005] VSC 195). See ‘Unacceptable risk’, below.

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 circumstances 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).

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).

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).

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 circumstances’ 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 bail 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 granting bail with stringent conditions was an acceptable alternative to a lengthy and uncertain period on remand during a pandemic. This was in light of the requirement in the Bail Act to consider all available options before remanding a child.

Surrounding circumstances: Aboriginality

In Re LT [2019] VSC 143 (at [66]–[67), exceptional circumstances were found to exist in the case of a young Aboriginal applicant who should be supported to explore her heritage and strengthen family bonds, rather than have that opportunity disrupted by time on remand. See also Re Moore [2019] VSC 344 at [23].

In Re Foster [2020] VSC 62, the court considered a number of matters relating to an applicant’s Aboriginality. The court found that exceptional circumstances may be established in circumstances where the vulnerability of Aboriginal persons in custody were combined with certain factors. These factors include providing an alternative to remand, opportunities to explore culture, and the availability of treatment for drug and alcohol issues ‘based on therapeutic community principles and Aboriginal cultural practices’ (at [14] and [33]). An applicant’s Aboriginality is an important consideration but does not swamp all other considerations (see Re Reker [2019] VSC 81 at [69]).

In Re KF [2022] VSC 349, the court considered the grief associated with the death of an applicant’s family members when the applicant was on remand and the guilt associated with being unable to participate in Sorry Business. The court held that these matters may be considered as circumstances demonstrating the existence of a compelling reason [40] and highlighted that caution should be applied in questioning a person’s Aboriginality where no such issue is raised in the material before the court [38].

Aboriginality and COVID-19

In the context of COVID-19, in Re Kennedy [2020] VSC 187 at [6]–[7] and Thomas v Kitching [2020] VSC 206 at [70]–[71], the court took into account the increased burden of restrictions on remand on Aboriginal offenders. That is, the accused’s isolation from family during a period of grief, and the increased danger of contracting COVID-19 in prison. 

Surrounding circumstances: COVID-19

The courts have been asked to take into account the COVID-19 pandemic in many contexts and find that exceptional circumstances are established. In a number of cases, courts have found that the health crisis is merely one of the surrounding circumstances to be taken into account in determining whether exceptional circumstances are established. It cannot be assumed that exceptional circumstances will be established in all cases (see Re Tong [2020] VSC141 at[33]; Re El-Refei (No 2) [2020] VSC 164 at [17]–[21]; and Re Sepehrnia [2020] VSC247 at [58]).

Show a compelling reason: An overview

If the bail applicant is charged with any of the offences listed in schedule 2 of the Bail Act, or falls into a certain category, the bail decision-maker must refuse bail, unless the accused can ‘show a compelling reason’ that justifies bail being granted (see sch 2 Bail Act (offences: show compelling reason) at
www.legislation.vic.gov.au).

In ReMatemberere [2018] VSC 762 at [29]–[30]), the court found that an accused person subject to an adjourned undertaking pursuant to section 75 of the Sentencing Act (commonly referred to as ‘a bond’) is serving ‘a sentence’. This may have application in determing whether an applicant for bail is required to establish a compelling reason.

Bail decision-making process for schedule 2 offences

Since 1 July 2018, the Bail Act has included flow chart 2 (s 3D(3)), 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 2 offence.

The test for a decision-maker when an accused is charged with a schedule 2 offence is a two-step test.

The first step is to decide whether the bail applicant has demonstrated that a compelling reason exists (see s 4C; flowchart 2 in s 3D(3)). If the bail applicant has not demonstrated that a compelling reason exists, then bail must be refused.

If the bail applicant has demonstrated that a compelling reason does 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 bail applicant is an unacceptable risk, then bail must be refused (see ‘Unacceptable risk’, below).

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 seriousness (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 COVID-19

In Re Broes [2020] VSC 128 at [36], the court acknowledged that in response to the COVID-19 pandemic, courts have introduced measures that have caused significant delays. Accordingly, accused persons potentially face lengthy periods on remand awaiting the hearing of their matter.

It has been held that delays in trials due to COVID-19 may establish compelling reasons (see Re JK [2020] VSC160 at [19]–[21]; Re Guinane [2020] VSC208 at[31], [43]). This is especially the case where such a delay is likely to lead to the accused spending longer on remand than they would in prison as a sentenced prisoner (see Re Broes [2020] VSC 128 at [41]; Re Tong [2020] VSC 141 at [34]; Thomas v Kitching [2020] VSC 206 at [6], [92]).

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.

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.

In Hall v Pangemanan [2018] VSC 533, Justice Croucher considered the application of ‘unacceptable risk’ in a bail application where the applicant was charged with being drunk in a public place and breaching a curfew condition (a Bail Act offence). His Honour noted that this type of offending is not serious and has a low risk of harming the public (apart from being a nuisance and creating work for police officers). An ‘unacceptable risk’ is not any risk of reoffending; rather, the question is whether the risk is unacceptable. The law must recognise that a high risk of reoffending of a minor nature is not unacceptable. His Honour concluded that the risk in that case was acceptable because the alternative (i.e. imprisonment for an offence that does not warrant such a sentence) is intolerable. His Honour said, ‘Common sense says that we cannot keep locking people up in those circumstances’ (at [25]).

In Re HA [2021] VSCA 64, the Court of Appeal held that the ‘question of unacceptable risk “must be relative to all of the circumstances”, in particular the exceptional circumstances that justify the grant of bail’. A risk that may otherwise be considered to be unacceptable may be deemed to be acceptable if the relevant circumstances are particularly compelling.

Even in circumstances where the prosecution concedes that an applicant’s likely sentence is less than the time they may spend on remand, a bail decision-maker must still consider the issue of risk and may refuse bail if the accused poses an unacceptable risk (see Re Dib [2019] VSC at [10], [53], [57]). However, in HA v The Queen [2021], the court held that in such circumstances, the continued incarceration becomes a form of preventative detention, which is alien to the fundamental principles of our justice system (see [63]–[64]).

In determining whether an applicant constitutes an unacceptable risk, a court is required to evaluate the alleged risks and consider whether they can be made acceptable by the imposition of conditions as recognised by the Bail Act. In Re Moore [2019] VSC 344, the court recognised that although some risks may be substantial, they may be ‘acceptably ameliorated by strict conditions’ (at [40]). In Re Moore, the court held that even where an offender constitutes an unacceptable risk, the availability of appropriate treatment at a facility may render the risk acceptable (at [34]). The availability of residential rehabilitation ‘may be viewed in the matrix of surrounding circumstances considered to be relevant to risk mitigation’ (Re Hamilton-Greene [2021] VSC 484).

Notwithstanding significant delay and hardships in custody caused by the COVID-19 pandemic, courts must separately consider unacceptable risk as the second step in decision-making regarding bail. In the case of DPP (Vic) v Walker (a pseudonym) [2020] VCC 447, the court held that even where a compelling reason was established by the accused, the risk arising from him living with his partner and her children during stay at home restrictions was unacceptable where there was a significant history of family violence offending (see [45]–[49], [52]). See also Re Lowe [2020] VSC 584 at [51]–[52]. 

See also:

• Re SS [2020] VSC 618 regarding low-level offending;
• Re Howell [2021] VCC 112 regarding extensive criminal history and disregard for court orders;
• Re SC [2021] VSC 770 regarding the delay between the alleged offending and being charged in the context of historic sexual offending;
• Re Hamilton-Green [2021] VSC 484 at [12] regarding the relevance of the availability of residential rehabilitation as risk mitigation; and
• Re GG [2021] VSC 12 regarding Aboriginal children in custody and conditions to mitigate risk.

Bail may be refused if the court is satisfied that there has not been enough time since the commencement of the proceeding against the accused to obtain sufficient information for the purpose of deciding the matter (s 8A Bail Act).

Bail may also be refused if the bail applicant is charged with an offence of causing injury and it is uncertain whether the injured person will die or recover (s 8B Bail Act).