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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Changes to the Bail Act (Vic)


Whether to grant bail to a person who has been charged with criminal offences is a complex decision. The decision-maker must balance the protection of the community with the accused’s right to the presumption of innocence and the need to avoid depriving individuals of their liberty unnecessarily. There were significant changes to the Victorian Bail Act 1977 after some high profile terrorist offences in Melbourne. This article outlines the tests that must now be applied when a person applies for bail in Victoria.

Bail and the ‘unacceptable risk’ test

Under the changes, the ‘unacceptable risk’ test remains in respect of all offences. If the court considers there is an unacceptable risk that a person who is applying for bail would endanger the safety of others, commit further criminal offences, interfere with witnesses, obstruct justice or fail to comply with conditions then they must be refused bail.

The prosecution must prove that a risk exists and that the risk is unacceptable.

Surrounding circumstances

A bail decision-maker (which may be a court, the police or a bail justice) must consider the surrounding circumstances of a matter when deciding whether to grant an applicant bail. Section 3AAA of the Act sets out what ‘surrounding circumstances’ may be but does not limit what can be taken into account. Section 3AAA provides that ‘surrounding circumstances’ may include the following:

  • The nature of and seriousness of the offence;
  • The strength of the case against the accused;
  • The criminal history of the accused;
  • Whether the accused person has previously complied, failed to comply, with bail conditions;
  • Whether the accused is on bail, summons or awaiting trial in respect of another offence;
  • Whether there are family violence intervention orders or safety notices in place;
  • The accused’s personal circumstances;
  • Whether the accused has any special vulnerability;
  • Any likely delay to a hearing that would affect how long the accused person spends in custody before being tried or sentenced; or
  • The sentence likely to be imposed if the accused is found guilty.

Bail and family violence 

One major change to the Victorian Bail Act is that there is now a specific direction that states that bail decision-makers must assess the risks of family violence posed by an offender being granted bail. Under section 5AAAA, the decision-maker must consider:

  • Whether there is a current family violence safety notice, family violence intervention order, or other domestic violence order against the accused; and
  • If the accused is charged with a domestic violence offence, whether granting them bail would risk further family violence offences being committed and whether that risk could be mitigated by bail conditions, or by the court making a family violence intervention order.

The two-step tests

Under the amended Bail Act, there are two two-step processes that must be followed before deciding whether a person should be granted bail. Which two-step process applies depends on what offences the accused is charged with and their prior criminal history and antecedents (if any).

The two step tests are ‘the exceptional circumstances test’ and the ‘show compelling reason test’. Both of these tests involve a second step where the court must consider whether the accused person poses an unacceptable risk.

Exceptional circumstances test

The exceptional circumstances test requires the bail decision-maker to refuse bail unless satisfied that exceptional circumstances exist that justify bail being granted.

The exceptional circumstances test will most often apply when:

  • A person is charged with a Schedule 1 offence (such as treason, murder, aggravated home invasion and serious drug offences); or
  • A person charged with a Schedule 2 offence (such as manslaughter, causing serious injury and serious sexual offences) and they have a terrorism record or there is a risk that they will commit a terrorism offence; or
  • An accused was already on bail for, awaiting trial for or summonsed for a Schedule 1 or Schedule 2 offence.

These offences are listed in Schedules 1 and 2 of the Bail Act. A person accused of any one of them must prove that exceptional circumstances exist in order to be granted bail.

In the 2018 Victorian Supreme Court decision of Re: Gloury-Hyde, the court gave an insight into what may be put before a court in order to show exceptional circumstances. The judgment given by Priest JA stated that the concept of ‘exceptional circumstances’ is an elusive one. However, this case makes it clear that there may be a combination of factors that amount to exceptional circumstances. In this particular case, a combination of personal circumstances of the accused including an acquired brain injury, supportive family relationships and the organisation of a residential facility to treat drug-related issues. Together, these factors ultimately satisfied the exceptional circumstances test.

Bail and the ‘show compelling reason’ test

The ‘show compelling reason’ test requires the decision maker to refuse to grant bail unless satisfied that a compelling reason exists that justifies bail being granted.

The ‘show compelling reason’ test applies where:

  • A person is accused of a Schedule 2 offence; or
  • A person is charged with an offence and the person has a terrorism record or there is a risk that they will commit a terrorism offence.

These offences are located in Schedule 2 of the Bail Act and a person accused of any of them bears the burden of proving that a compelling reason exists for granting bail.

The 2018 Supreme Court decision of Re Ceylan found that “compelling reason” could be likened to a forceful and therefore convincing reason and one that is difficult to resist. The threshold for “compelling reason” is lower than that for exceptional circumstances.

Conclusion

When a person is charged with offences and the question of bail is raised, it is important to get the advice of a lawyer as soon as possible. Whether or not to apply for bail and at what point in proceedings toa pply for bail can be strategic decisions and it is not always in the accused’s best interests to apply for bail at the earliest opportunity.

If you would like legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal. 

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