Part 2 - Granting of bail and admission to bail - SCR test Flashcards
4C Step 1- Show compelling reasons test (burden on A, then move to UR test)
(1) Section applies if, under ss 4AA(3)/(4), the step 1—SCR test applies to a bail decision.
(1A) BDM must refuse bail unless satisfied that compelling reason exists justifying bail grant.
(2) Accused bears burden of satisfying the BDM as to the existence of a CR.
(3) In considering whether a CR exists, BDM must take into account surrounding circs.
(4) if the BDM satisfied that CR exists that justifies bail grant, must then move to UR test.
Re Ceylan [2018] VSC 361 (“forceful” and therefore convincing reason showing that, in all the circs, the continued detention of the applicant was not justified = consider 3AAA)
○ [45] ECs plainly intended to be more difficult than CR.
○ [46] Consider all relevant circumstances including (1) strength of prosecution case, (2) accused’s personal circumstances and (3) crim history. Synthesis of all factors.
○ [47] CR will likely be shown if there is “forceful” and therefore convincing reason showing that, in all the circs, the continued detention of the applicant was not justified. Does not require the applicant to show a reason that is irresistible or exceptional. Compelling might be described as a reason that is “difficult to resist”
Re Alsulayhim [2018] VSC 570 (Re Ceylan the test)
Re Ceylan test remains the law on CR. [28]
Can look to strength of pros case, personal circs and circs mentioned in s3AAA
Re Johnstone (No 2) [2018] VSC 803 (Generally, fact that an applicant for bail has already spent more time in custody than would be required by any sentence that might ultimately be imposed for the relevant offending, is compelling reason justifying a grant of bail)
[18] Generally, and all other things being equal, the fact that an applicant for bail has already spent more time in custody than would be required by any sentence that might ultimately be imposed for the relevant offending, is compelling reason justifying a grant of bail.[12] For such a circumstance not to constitute a compelling reason in a particular case, one would expect there to be other significant countervailing factors or circumstances affecting the synthesis required to be performed.
Re Walker [2018] VSC 804 (SCR = vulnerable on remand and offence at lower end of seriousness)
[32] CR may be shown if accused would be vulnerable on remand (be very vulnerable in custody and at risk of self-harm due to an exacerbation of his depression) and offending is at the lower end of seriousness [50]
Re Gaylor [2019] VSC 46 (negative impact on community interests - away from family and treatment, also important)
[35]ff Sometimes remand can have negative impact on community interests - eg, away from family and treatment - Can also argue that
Re JM [2019] VSC 156 (Youth and special vulnerability can constitute CR)
Youth and special vulnerability can constitute CR: [50] The applicant is a child with a history of deliberate self-harm and suicidal ideation, including attempted suicide by drug overdose. He has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and PTSD, has substance abuse issues and remains at risk of self-harm.
