Presumption of bail, unless unacceptable risk
The starting point and underlying fundamental common law presumption is that all persons should be granted bail (R v Light  VLR 152). This accords with ss.21(2) and ss.21(6) of the Victorian Charter of Human Rights and Responsibilities 2006.
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act. This means if schedule 1 (Exceptional Circumstances Category) & schedule 2 (Show Compelling Reasons) do not apply, then the entitlement to bail provision is the sole determining factor as to whether an accused is granted bail.
The starting presumption is that the Accused should be granted bail unless the prosecution can establish that the Accused poses an unacceptable risk. The test is contained in section 4E of the Bail Act 1977.
BAIL ACT 1977 – SECT 4E
(1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that—
(a) there is a risk that the Accused would, if released on bail—
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk
An unacceptable risk that the Accused, if released on bail, would commit a family violence offence
(2) The prosecutor bears the burden of satisfying the bail decision maker—
(a) as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b) that the risk is an unacceptable risk.
(3) In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must—
(a) take into account the surrounding circumstances; and
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.
(b) consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Why has granting bail become so much harder in Victoria since the July 2018 changes?
The categories to which “show compelling reasons” and “exceptional circumstances” apply have greatly increased which means that the categories in relation to entitlement to bail have decreased.
The first categories are ‘reverse onus’ tests, that is the Accused person must prove either exceptional circumstances or compelling reasons exist and then put the prosecution to proof in relation to unacceptable risk.
Defendants captured under the reverse onus tests are less likely to get bail than those just facing unacceptable risk.
Burden of proof in relation to unacceptable risk
The prosecution has the burden of proving or establishing that the Accused is an unacceptable risk. It is not up to the Accused to prove he or she is an acceptable risk. There is no set standard of proof.
The bail decision maker must refuse to grant bail if they are satisfied there is an unacceptable risk that the Accused person would endanger the safety or welfare of any person, commit an offence, interfere with a witness, obstruct the course of justice or fail to surrender into custody.
What are the factors that go to addressing an unacceptable risk?
The factors that go to addressing risk depend on the risk alleged by the prosecution per section 4E(1)(a). Some examples are:
- Stable accommodation
- Stable employment
- Drug and alcohol treatment
- Mental health treatment
- Residential rehabilitation
- Strict bail conditions
- Compliance with bail in the past
The legislation also provides some guidance in deciding whether the Accused is an unacceptable risk. The bail decision maker must consider all relevant matters, per s.3AAA, including:
- The nature and seriousness of the alleged offending, including whether the Accused is charged with a serious example of the particular offence;
- The strength of the prosecution case;
- Any criminal history of the Accused;
- The history of any previous grants of bail;
- If at the time of the alleged offending the Accused was: on bail, subject to a summons for another offence, waiting for another trial, on parole, or subject to a CCO or other offence;
- Whether there are currently any family violence orders or safety orders against the Accused;
- The Accused’s personal circumstances, associations, home environment and background;
- Any special vulnerability of the Accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness.
- The known or likely view of the victim to the Accused being granted bail;
- Time likely to be spent in custody if bail is not granted;
- Likely sentence imposed if the Accused is found guilty;
- Any expression of public support for a terrorist act or organisation by the Accused, or the provision of resources by the Accused to such a terrorist organisation.
If the bail decision maker thinks the Accused is an “unacceptable risk” then bail shall be refused per section 4E.
As can be seen from the extensive list of considerations above, the bail decision maker must take a holistic look at the situation and circumstance of the Accused in order to determine if bail must be granted or refused.
When considering whether to run a bail application it is important that you engage lawyers with experience. Dribbin & Brown Criminal Lawyers have that experience, we have run countless bail applications in the Courts. If someone connected to you requires a bail application, contact Dribbin & Brown Criminal Lawyers on our Criminal Lawyers advice line, 03 8644 7333 and let us work out how we can help you.