Getting bail – what are compelling reasons or exceptional circumstances?

In the wake of well publicised crimes committed by persons on bail, the Victorian Government changed the bail laws to make it more difficult to be granted bail. As a consequence, our remand centres have unprecedented numbers of persons awaiting resolution of their matters.

When the police oppose bail, the person charged has to establish either “compelling reasons” or “exceptional circumstances” that they should be granted bail. The difference between these two depends on the charges.

Harder to get bail - Exceptional Circumstances.

Exceptional circumstances applies if you commit serious offences, have committed further offences on bail, or failed to appear at court while on bail. This is a higher bar to meet and therefore more difficult to get bail.

It is not impossible to show exceptional circumstances. We regularly get clients out on bail  because we know what combination of circumstances will make  it likely that a court will find that the threshold has been met.

This includes arranging evidence of:

  1. A surety;
  2. Stable employment;
  3. Stable accommodation;
  4. Family supervision;
  5. Mental or physical illness that will make incarceration harder on our client;
  6. Rehabilitation.

Easier to get bail - Compelling Reasons.

At the same time, showing compelling reasons was made more onerous to the previous test which was  to“show cause”. Compelling reasons at law means that you have to show:

  • “forceful, and therefore convincing, reasons showing that, in all the circumstances, the continued detention of the applicant in custody was not justified” (Re Ceylan [2018] VSC 361).

Example case of Compelling Reasons.

We had a client who was charged with intentionally causing injury by ramming his car into another car. The police initially said that he needed to show compelling reasons. However the prosecutors decided that he needed to show exceptional circumstances. They contended that the car was deemed an “offensive weapon”.

In our view this was absurd. In front of Magistrate Kumar, we argued that an offensive weapon required an ordinary object to somehow be modified. An example is such a glass bottle having been smashed and the jagged ends used to cause injury to another person. The magistrate agreed.

His Honour released our client on bail by showing he had established compelling reasons due to the following:

  1. That the underlying charges, if our client was found guilty would not warrant a custodial sentence and therefore remanding him would be out of proportion;
  2. That he had a minimal criminal history;
  3. That he was only 22 years old;
  4. That bail conditions can be imposed to deal with any concerns by the police – this included a curfew and daily reporting to his local police station.

Court can still remand where there is an "Unacceptable Risk".

Even where a court finds that there are exceptional circumstances and compelling reasons to grant bail, bail can still be denied where there is an unacceptable risk.

Police may alleged there is a risk that the person:

  • will commit offences on bail;
  • fail to appear at court;
  • endanger persons while on bail;
  • interfere with witnesses.

BCL lawyers will argue that the risk can be made acceptable by imposing strict bail conditions such as:

  • signing into a police station;
  • a curfew;
  • reside at a fixed address;
  • only have access to one mobile phone;
  • not to use drugs or consume alcohol;
  • not to contact co-accused or witnesses for the prosecution.

It is for the police to prove that there is an unacceptable risk, this needs to be supported by admissible evidence. It is not enough for police to merely speculate as to he risk.

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