What is Show Compelling Reasons?
“Show Compelling Reasons” is a reverse onus test in relation to bail in Victoria. In respect of this bail threshold, bail shall be refused unless the Accused can “show compelling reason” why their detention in custody is not justified.
What are “Compelling Reasons”, when applying for bail in Victoria?
The Bail Act 1977 (Vic) does not define what “compelling reasons” means. However, it is the accused who bears the onus of convincing the bail decision-maker that they should be granted bail.
The following examples have been extracted from case law as things that might go to establishing compelling reasons:
- 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
There is also some direction provided in the Act by reference to “surrounding circumstances”, per s3AAA of the Bail Act 1977.
See the Bail Act section 3AAA and what the judiciary must consider when assessing the surrounding circumstances.
The above categories are a rough guide to things that can be considered.
When considering an application for bail in circumstances where ‘compelling reasons’ are required to be shown, you must engage experienced bail offence lawyers to determine all factors that might assist in making out ‘compelling reasons’.
You only get one shot at a represented bail application, so don’t waste your chance. Dribbin & Brown Criminal Lawyers specialise in bail applications and are here to help you.
Categories of offences that attract the ‘Show Compelling Reasons’ test:
The Bail Act 1977 (Vic), s4C, in conjunction with schedule 2, outlines situations that will result in the accused having to show compelling reasons why their detention in custody is not justified. If the offending relates to any of the following situations, then the test for bail will be “show compelling reasons”.
Schedule 2 Offences under the Bail Act
1. An indictable offence that is alleged to have been committed by the accused—
(a) while on bail for another indictable offence; or
(b) while subject to a summons to answer to a charge for another indictable offence; or
(c) while at large awaiting trial for another indictable offence; or
(d) during the period of a community correction order made in respect of the accused for another indictable offence or while otherwise serving a sentence for another indictable offence; or
(e) while released under a parole order.
VIOLENT OFFENDING
2. Manslaughter.
3. Child homicide.
4. Causing serious injury intentionally in circumstances of gross violence section 15A of the Crimes Act.
5. Causing serious injury recklessly in circumstances of gross violence, s15B of the Crimes Act 1958.
6. Causing serious injury intentionally, section 16 of the Crimes Act 1958
7. Threats to Kill relating to family violence, section 20 of the Crimes Act 1958
8. Stalking, section 21A(1) of the Crimes Act 1958 (stalking) and—
(a) Within the preceding 10 years has been found guilty of an offence where the accused used or threatened to use violence against any person; or
(b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person whom the accused is alleged to have stalked, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence.
SEXUAL RELATED OFFENDING
9. Rape, section 38(1) of the Crimes Act 1958
10. Rape by compelling sexual penetration, section 39(1) of the Crimes Act 1958
11. Assault with intent to commit a sexual offence, section 42(1) of the Crimes Act 1958
12. Abduction or detention for a sexual purpose section 47(1) of the Crimes Act 1958
13. Sexual penetration of a child under the age of 12, section 49A(1) of the Crimes Act 1958
14. Sexual penetration of a child under the age of 16, section 49B(1) of the Crimes Act 1958
15. Persistent sexual abuse of a child under the age of 16 An offence against section 49J(1) of the Crimes Act 1958 ().
16. Abduction or detention of a child under the age of 16 for a sexual purpose section 49P(1) of the Crimes Act 1958
17. An offence against any of the following provisions of Subdivision (8C) of Division 1 of Part I of the Crimes Act 1958 (incest) in circumstances other than where both people are aged 18 or older—
(a) section 50C(1) (sexual penetration of a child or lineal descendant);
(b) section 50D(1) (sexual penetration of a step child);
(c) section 50E(1) (sexual penetration of a parent, lineal ancestor or step-parent);
(d) section 50F(1) (sexual penetration of a sibling or half-sibling).
INTERVENTION ORDER RELATED OFFENCES
18. An offence against section 37, 37A, 123 or 123A of the Family Violence Protection Act 2008 which the accused is alleged to have used or threatened to use violence and—
(a) the accused has within the preceding 10 years been found guilty of an offence which the accused used or threatened to use violence against any person; or
(b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order or notice, whether or not the accused was found guilty.
19. An offence against section 125A(1) of the Family Violence Protection Act 2008 (persistent contravention of notices and orders).
20. An offence against section 100 of the Personal Safety Intervention Orders Act 2010 the accused is alleged to have used or threatened to use violence and—
(a) the accused has within the preceding 10 years been found guilty of an offence which the accused used or threatened to use violence against any person; or
(b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order, whether or not the accused was found guilty.
OTHER OFFENDING RELATING TO VIOLENCE
21. An offence against section 63A of the Crimes Act 1958 (kidnapping).
22. An offence against any of the following provisions of the Crimes Act 1958 —
(a) section 75A(1) (armed robbery);
(b) section 77 (aggravated burglary);
(c) section 77A (home invasion);
(d) section 79 (carjacking);
(e) section 197A (arson causing death);
EMERGENCY WORKER OFFENCES
(ea) section 317AC (intentionally exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving);
(eb) section 317AD (aggravated offence of intentionally exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving);
(ec) section 317AE (recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving);
(ed) section 317AF (aggravated offence of recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving);
(ee) section 317AG (damaging an emergency service vehicle);
DRIVING OFFENCES
(f) section 318(1) (culpable driving causing death);
(g) section 319(1) or (1A) (dangerous driving causing death or serious injury);
(h) section 319AA(1) (dangerous or negligent driving while pursued by police).
23. Any indictable offence which the accused, or any other person involved in the commission of the offence, is alleged to have used or threatened to use a firearm, offensive weapon, or explosive as defined by section 77 of the Crimes Act 1958 .
DRUG OFFENCES
24. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 —
(a) section 71AB (trafficking in a drug or drugs of dependence to a child);
(b) section 71AC (trafficking in a drug of dependence);
(c) section 72B (cultivation of narcotic plants);
(d) section 79(1) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a), (b) or (c).
25. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981
(a) section 71(1) (trafficking in a drug of dependence);
(b) section 72(1) (cultivation of narcotic plants);
(c) section 79(1) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a) or (b).
COMMONWEALTH OFFENCES
26. An offence against section 302.2, 302.3, 303.4, 303.5, 304.1, 304.2, 305.3, 305.4, 306.2, 307.1, 307.2, 307.5, 307.6, 307.8, 307.9, 307.11, 309.3, 309.4, 309.7, 309.8, 309.10, 309.11, 309.12, 309.13, 309.14 or 309.15 of the Criminal Code of the Commonwealth.
27. (Commercial or trafficable quantity) An offence under section 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth in circumstances where the offence is committed in relation to a commercial or trafficable quantity of narcotic goods within the meaning of that Act.
OTHER
28. An indictable offence that is alleged to have been committed while the accused is the subject of a supervision order, or interim supervision order, within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009.
29. An indictable offence, and the accused, at any time during the proceeding with respect to bail, is the subject of a supervision order, or interim supervision order, within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009.
30. An offence against this Act (Offences against the bail act)
31. An offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in any other item of this Schedule.
In these situations, the bail decision maker shall refuse bail unless the Accused can show compelling reasons why his or her detention would not be justified.
It is important to note that even if an Accused shows compelling reasons why they should be granted bail, it is still possible for the court to refuse bail on the basis that the Accused is seen to be an unacceptable risk. See the legislation per 4C of the Bail Act 1977
Schedule 2 offences—step 1—show compelling reason test
(1) A bail decision maker must refuse bail for a person accused of a Schedule 2 offence unless satisfied that a compelling reason exists that justifies the grant of bail.
(2) The accused bears the burden of satisfying the bail decision maker as to the existence of a compelling reason.
(3) In considering whether a compelling reason exists, 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 a compelling reason exists that justifies the grant of bail, the bail decision maker must then move to step 2—unacceptable risk test
BAIL ACT 1977 – SECT 4D Schedule 2 offences—step 2—unacceptable risk test
BAIL ACT 1977 – SECT 4D
Schedule 2 offences—step 2—unacceptable risk test
(1) If at step 1 (section 4C) the bail decision maker is satisfied that a compelling reason exists that justifies the grant of bail for a person accused of a Schedule 2 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.
Why has bail become so much harder in Victoria?
As can be seen from this article, there are many circumstances that now put an accused person in a category of bail that require them to ‘show compelling reasons’ why their detention in custody is not justified. As stated, this means the accused has to show compelling reasons why they should be released. Sometimes an accused person will have to show compelling reasons in circumstances where they may not even receive gaol on the substantive offending on a plea of guilty, this is why it is so important to engage specialist lawyers early in relation to assessing your case.
Dribbin & Brown Criminal Lawyers run a 7 am to midnight specialist criminal lawyers bail advice line. If you call within these times and no one answers, leave a message, as someone will call you back quickly. Unlike some other places you might call, the lawyers who answer our phones are not law graduates or inexperienced people. They are our own experienced criminal lawyers, and they go to court every day. If you have a loved one remanded in custody and want the best representation, then call the bail specialists today on the number at the top or bottom of the screen, or if not urgent, call the main office number.
