Exceptional Circumstances

Exceptional Circumstances and Bail in Victoria:

Section 4A of the Bail Act 1977 states that a bail decision maker must refuse bail for a person accused of a schedule 1 offence unless satisfied that ‘exceptional circumstances’ exist that justify the grant of bail. This makes the test a ‘reverse onus’ test, that is, the accused person bears the burden of satisfying the judiciary as to the existence of exceptional circumstances.

What are exceptional circumstances?

Exceptional circumstances are not specifically defined in the Bail Act 1977, but unlike show compelling reasons, exceptional circumstances as a threshold for bail has been around for a long time. There are numerous categories and cases decided in respect of determining what can amount to exceptional circumstances. It is often the case that a combination of one of more of the factors listed below will amount to exceptional circumstances.

• Re Gloury-Hyde [2018] VSC 393 (Combination of weak prosecution case, personal circumstances, absence of factors showing that the applicant was an unacceptable risk)
• COVID-19 Tong [2020] VSC 141 (26 March 2020)
• Inordinate Delay (common in drug matters or fraud investigations) El Nasher v DPP [2020] VSCA 144 (4 June 2020)
• Victim Forgiveness (Jedson [2004] VSC 345)
• Hardship (ill health and age) (Fisher [2001] VSCA 164)
• Exceptional Family Hardship (Markovic 2010 VSCA 105)
• Assisting Authorities (Mr Z [2005] VSC 90)
• Extreme Provocation (Stavreski [2004] VSC 16)
• Youth always but particularly when dealing with a child  see 3B(1) of the Bail Act Re JO [2018] VSC 438
• Character
• Different offending
• More Minor offending (R v Newman and Turnball) (1997 1 VR 146)
• Stable accommodation
• Surety
• Court supported bail programs (CISP & CREDIT)
• Other treatment programs
  • Psychological / Psychiatric treatment
  • Residential Rehabilitation
  • Drug and alcohol counselling
• Stable employment
• Supervision, family or otherwise
• Prior history or lack thereof
• Strength of the police case
• Previous compliance with bail
• Any vulnerability
• View of the complainant (if relevant)
• Likely sentence to be imposed

Surrounding Circumstances

Like all bail applications, other factors the bail decision maker must take into account are the ‘surrounding circumstances’.

For more on what amounts to the surrounding circumstances see the Bail Act under section 3AAA.

In terms of the offences that place an accused person in an exceptional circumstances category, they are defined by Schedule 1 of the Bail Act 1977.

SCHEDULE 1 OFFENCES UNDER THE BAIL ACT 1977 (EXCEPTIONAL CIRCUMSTANCES) 

1. Treason
2. Murder

OTHER CHARGES OR ON CCO

3. A Schedule 2 bail offence that is alleged to have been committed by the accused—

(a) while on bail for any Schedule 1 bail offence or Schedule 2 bail offence; or
(b) while subject to a summons to answer to a charge for any Schedule 1 bail offence or Schedule 2 bail offence; or
(c) while at large awaiting trial for any Schedule 1 bail offence or Schedule 2 bail offence; or
(d) during the period of a community correction order made in respect of the accused for any Schedule 1 bail offence or Schedule 2 bail offence or while otherwise serving a sentence for any such offence; or
(e) while released under a parole order made in respect of any Schedule 1 offence or Schedule 2 offence.

SERIOUS VIOLENCE

4. Aggravated Home Invasion (An offence against section 77B of the Crimes Act 1958)
5. Aggravated Car Jacking (An offence against section 79A of the Crimes Act 1958)
   

DRUG OFFENCES

6. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981—

a) Large Commercial Quantity Drug Trafficking (Section 71)
b) Commerical Quanity Drug Trafficking (Section 71AA)
c) Cultivation of Cannabis in a large Commercial Quantity (250kg, can be weighed wet, section 72).
d) Cultivation of Cannabis in a Commercial Quantity (25kg, can be weighed wet, section 72A).
e) Conspiracy to commit an offence contained in paragraph (a), (b), (c) or (d) (section 79)

7. Large Commercial Quantity (As defined by the DPCS state legislation) in respect of an offence under sections 302.2, 302.3, 303.4, 303.5, 304.1, 304.2, 305.3 or 305.4 of the Criminal Code of the Commonwealth.
8. Commercial Quantity (As defined by the DPCS state legislation) in respect of an offence under sections 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code of the Commonwealth
9. Commercial Quantity (As defined by the DPCS state legislation) in respect of an offence under sections 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth

OTHER OFFENCES

10. Terrorism Offences under 4B(1) or 21W of the Terrorism (Community Protection) Act 2003.
11. An offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in any other item of this Schedule.

If an accused person fits into schedule 1 in relation to bail the court must first be satisfied that exceptional circumstances exist which justify the grant of bail. As indicated The Bail Act 1977 (Vic) does not define what “exceptional circumstances” but a number of factors and cases have been identified at the beginning of this article.

It is important to note that even if an Accused shows exceptional circumstances, it is still possible for the court to refuse bail on the basis that the Accused is, an unacceptable risk, per the operation of section 4A and 4B of the Bail Act 1977.

BAIL ACT 1977 – SECT 4A

Schedule 1 offences—step 1—exceptional circumstances test

1. A bail decision maker must refuse bail for a person accused of a Schedule 1 offence unless satisfied that exceptional circumstances exist that justify the grant of bail.
2. The accused bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances.
3. In considering whether exceptional circumstances exist, the bail decision maker must take into account the surrounding circumstances.

Note

The term surrounding circumstances is defined in section 3. Also the bail decision maker is required to take into account other matters if the accused is an Aboriginal person or a child. See sections 3A and 3B.

4. If the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail, the bail decision maker must then move to step 2—unacceptable risk test.

BAIL ACT 1977 – SECT 4B

Schedule 1 offences—step 2—unacceptable risk test

1. If at step 1 (section 4A) the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail for a person accused of a Schedule 1 offence, the bail decision maker must apply the unacceptable risk test.
2. For the application of the unacceptable risk test, the prosecutor bears the burden of satisfying the bail decision maker—
   (a)     as to the existence of a risk of a kind mentioned in section 4E(1)(a); and
   (b)     that the risk is an unacceptable risk.
3. On applying the unacceptable risk test, the bail decision maker must refuse bail if required to do so by section 4E.

If you have read this article, then you now understand the complicated considerations attached to any exceptional circumstances bail application.

What amounts to exceptional circumstances has not been specifically identified by the courts.

If an accused person is on remand in relation to a matter that puts them in an ‘exceptional circumstances’ category, then you need to engage specialist lawyers that understand the bail laws.

It is important to remember that you only get one shot at a represented bail application unless you can show new facts and circumstances.

Dribbin & Brown Criminal Lawyers are highly experienced and run complicated bail applications all the time.

If you need to arrange for someone to get bail, call Dribbin & Brown Criminal Lawyers today on our Dribbin & Brown Criminal Lawyers bail hotline – (03) 8644 7333.