Part 2 - Granting of bail and admission to bail - Initial provisions and EC test Flashcards
Section 4 - Entitlement to bail
Person accused of offence, being held in custody in relation to it, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
4AA — When the 2 step tests apply - EC = Sch 1, and Sch 2 but terrorism record; terrorism/foreign incursion offence risk; offence alleged while on bail/summons/at large/during CCO period/serving sentence/parole for Sch1/2 offence; SCR for other Sch 2 offences; SCR for non Sch 1/2 offences if terrorism record; terrorism/foreign incursion offence risk
(1) Step 1 - EC test applies to bail decisions for persons accused of Sch 1 offences
(2) Step 1 - EC test applies to bail decisions for persons accused of Sch 2 offence if:
(a) The person has a terrorism record; or
(b) Court considering the grant of bail determines under s 8AA that there is a risk that the person will commit a terrorism or foreign incursion offence; or
(c) Offence alleged to have been committed:
○ (i) While accused on bail for a Sch 1/2 offence
○ (ii) while accused subject to summons to answer charge for any sch 1 / 2 offence
○ (iii) while accused at large awaiting trial on any sch 1 or 2 offence
○ (iv) During the period of a CCO made in respect of A for any sch 1/2 offence
○ (v) While accused otherwise serving sentence for any sch 1 or 2 offence
○ (vi) Or while released under a parole order for any sch 1 or sch 2 offence
(d) the offence is offence of conspiracy to commit, incitement to commit, attempt to commit offence in any circumstances set out in paragraph (c).
(3) Step 1 - SCR test applies to bail decisions for As of sch 2 offences if (2) doesn’t apply
(4) Step 1 - SCR test also applies to bail decisions for As of offence (neither Sch 1 / 2) if:
● (a) person has terrorism record; or
● (b) Court considering the grant of bail determines under s 8AA that there is a risk that the person will commit a terrorism or foreign incursion offence
4A - Step 1—exceptional circumstances test
(1) Section applies if under s 4AA(1)/(2), the step 1- EC test applies to a decision of whether to grant bail
(1A) BMD must refuse bail unless satisfied that EC exist that justify grant of bail.
(2) Accused bears burden of satisfying BDM as to existence of ECs.
(3) In considering whether ECs exist, the BDM must take into account the SCs (s 3 above).
(4) if the BDM satisfied that ECs exist that justify bail grant, must then move to UR test.
Re JO [2018] VSC 438 (for ECs, same factors falling short for adult may get child over the line)
○ Heavy burden needs to be viewed through lens of s3B(1) - special status of a child: Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in case of a child.
Re Martinow [2019] VSC 118 (Hardship on family members not itself enough for EC. )
Hardship on family members not itself enough for EC. No doubt incarceration would impose real hardship on the family, but I do not think it rises to the level of exceptional circumstances which justify the grant of bail. The evidence adduced by the Respondent does not establish that Harper will miss out on the supports and services that are to be provided to her in due course under the National Disability Insurance Scheme. Even though Ms Nelson’s mother who lives next door is sickly and Ms Nelson’s 17-year-old daughter is currently completing Year 12, I am not persuaded Ms Nelson will be without any support in trying to juggle part-time work and her children’s needs. As for Sacha, he will not be placed in the care of a stranger. Ms Nelson has been his stepmother for several years now. I was told the Respondent and Ms Nelson have been in a relationship for approximately five years.
Re DR [2019] VSC 151 (longer remand than sentence may be EC)
Longer remand than sentence may be an exceptional circumstance. I accept the submission that even if found guilty of the contested charges, there is a realistic possibility that he would not receive a custodial sentence exceeding the time spent on remand. [56]
Re El-Refei [2020] VSC 65 (good example of balancing)
In my view, the matters relied on by the applicant, including delay, availability of outpatient rehabilitation treatment, stable accommodation, this being his first time in custody, and the asserted weaknesses in the prosecution’s case, do not, either in combination or individually, amount to exceptional circumstances. That is particularly so when considering the surrounding circumstances. The applicant has been charged with very serious offences, including aggravated home invasion. This is further compounded by the applicant’s criminal history, his poor performance on bail and while on community correction orders, and the fact that he was on an adjourned undertaking at the time of the alleged offending. Each of those considerations militates against a conclusion that the circumstances relating to this applicant are exceptional within the meaning of the Act.
Re Broes [2020] VSC 128 (significant delay + COVID = EC)
○ Given the extraordinary circumstances in which we now find ourselves, I have come to the conclusion that an already significant delay will be likely exacerbated by the consequences of COVID-19, and I am therefore satisfied that exceptional circumstances have been established.
