In Victoria, a person charged with a criminal offence is generally entitled to bail unless the Bail Act 1977 (Vic) requires that it be refused. For most offences, the question is whether the accused poses an unacceptable risk if released. But for serious offences, the law imposes a higher threshold meaning that the accused must first satisfy a more demanding test before bail can be granted at all.

Understanding which test applies to your charge — and what you need to demonstrate to satisfy it — is critical. At Angus Cameron and Partners, we regularly appear in bail applications for the most serious offences in the Victorian court system, including murder, armed robbery, drug trafficking, and sexual offences. If you or a family member has been refused bail or is facing a serious charge, we can help.

How Bail Works for Serious Offences

The Bail Act creates a stepped system of bail tests. The test that applies depends on the offence charged.

Schedule 1 offences — exceptional circumstances required

For the most serious offences listed in Schedule 1 of the Bail Act, bail must be refused unless the accused can demonstrate exceptional circumstances that justify its grant. Schedule 1 includes offences such as:

  • murder
  • armed robbery
  • aggravated burglary, home invasion, and carjacking
  • commercial and large commercial drug trafficking
  • rape and serious sexual offences
  • certain serious assault offences in aggravated circumstances

The exceptional circumstances test also applies to Schedule 2 offences where the accused has a terrorism record, or where the offence was committed while the accused was already on bail, on remand, on parole, or serving a sentence for a Schedule 1 or Schedule 2 offence.

Schedule 2 offences — compelling reason required

For offences listed in Schedule 2, bail must be refused unless the accused can demonstrate a compelling reason that justifies its grant. Schedule 2 includes offences such as:

  • manslaughter and child homicide
  • causing serious injury intentionally
  • stalking with a history of violence
  • culpable driving causing death and dangerous driving causing death or serious injury
  • serious drug offences not reaching the large commercial quantity threshold
  • certain family violence contravention offences

The compelling reason test also applies where an accused is charged with an indictable offence alleged to have been committed while already on bail for another indictable offence.

The unacceptable risk test

In all cases — whether or not the exceptional circumstances or compelling reason tests apply — bail must also be refused if the accused poses an unacceptable risk. This includes a risk of committing a further serious offence, endangering the safety of another person, interfering with witnesses, or failing to surrender. The prosecution bears the burden of establishing that a risk exists and that it is unacceptable.

The Exceptional Circumstances Test

Exceptional circumstances are not defined in the Bail Act, but the courts have said that circumstances must take a case ‘out of the norm’. This is a high hurdle, but not an impossible one. What ultimately matters is whether the circumstances, viewed as a whole, are exceptional to the extent that bail is justified even given the seriousness of the charge.

Critically, it is not enough to establish exceptional circumstances in a general sense. There must be exceptional circumstances that justify the grant of bail. The focus is on whether continued pre-trial detention will produce injustice — the decision maker looks to the future and considers the likely consequences of continued incarceration on the accused.

Exceptional circumstances may arise from a single factor or from a combination of factors, none of which might individually be exceptional. Equally, a single factor or combination may fall short. Each case turns on its own facts.

What can establish exceptional circumstances?

The courts have recognised that exceptional circumstances may be found in a range of situations, including:

  • Significant delay — where the time between alleged offending and trial is inordinate.
  • A strong argument that the charge is bound to fail.
  • Significant medical conditions — particularly where the condition may not receive adequate treatment in custody.
  • Availability of residential rehabilitation — where the accused has genuine prospects of rehabilitation through residential drug treatment, courts have recognised this as a factor, though detailed expert evidence is required.
  • Vulnerability on remand — including exposure to serious or repeated violence in custody.
  • Youth — age is a significant factor. Circumstances that might not be exceptional for an adult may be exceptional for a child or young person.

A strong prosecution case weighs heavily against a finding of exceptional circumstances. An accused’s lawful and unremarkable conduct during any period between the alleged offending and charging may, conversely, support the existence of exceptional circumstances.

The Compelling Reason Test

The compelling reason test is less demanding than the exceptional circumstances test, but still requires the accused to demonstrate a forceful and convincing reason showing that continued detention is not justified.

A compelling reason is found by considering all relevant circumstances, including the strength of the prosecution case, the accused’s personal circumstances and criminal history, and the surrounding circumstances. A synthesis of these factors must compel the conclusion that detention is not justified.

Many of the factors relevant to exceptional circumstances are also relevant to compelling reason — including the risk of spending more time on remand than any sentence likely to be imposed, the accused’s youth and vulnerability, the absence of a criminal history, and genuine prospects of rehabilitation. The courts have also said that where granting bail is likely to be in the community interest — for example, because the accused has real prospects of rehabilitation that would reduce the risk of future reoffending — this is a principal factor supporting a compelling reason.

Surrounding Circumstances

In assessing both tests, and in assessing unacceptable risk, the decision maker must consider all circumstances relevant to the matter. These include the nature and seriousness of the alleged offending, the strength of the prosecution case, the accused’s criminal history and compliance with any earlier bail conditions, their personal circumstances including caring responsibilities and background, any special vulnerability such as mental illness or cognitive disability, the availability of treatment or support services, the likely sentence if found guilty, and the length of time the accused is likely to spend in custody if bail is refused. The weight given to any particular factor is for the decision maker to determine.

FAQs

What is the difference between exceptional circumstances and compelling reason?

Exceptional circumstances is the higher and more demanding test, applying to the most serious Schedule 1 offences. Compelling reason applies to Schedule 2 offences and certain other situations. Both require the accused to demonstrate that continued detention is not justified, but the threshold for exceptional circumstances is significantly higher. Many of the same factors are relevant to both tests, but they carry different weight depending on which applies.

Can bail be granted for murder in Victoria?

Yes, but only by the Supreme Court and only if exceptional circumstances are established. It is a genuinely high threshold and bail in murder matters is relatively uncommon. However, it is not impossible — particularly where there is significant delay, a strong argument that the charge is unlikely to succeed, or other exceptional factors are present. At Angus Cameron and Partners, we have secured bail for clients charged with murder.

What if I was on bail when the new offence was alleged to have been committed?

Being charged with an offence alleged to have been committed while on bail can significantly affect your bail position. Depending on the nature of both offences, the exceptional circumstances or compelling reason test may be triggered even if the new charge would not ordinarily attract those tests. This is a complex area and legal advice is essential.

How long can I be held on remand before trial?

There is no fixed limit, but delay is a significant factor in bail applications. The courts have recognised that at some point, continued pre-trial detention of a person who is presumed innocent can no longer be justified regardless of the seriousness of the alleged offending. The longer the delay, the stronger the argument for bail becomes, provided the delay is not of the accused’s own making.

What is an unacceptable risk?

An unacceptable risk is not simply any risk of reoffending or non-attendance. The question is whether the risk — having regard to its nature and magnitude — is one that cannot be reduced to an acceptable level by the imposition of bail conditions. A high risk of very minor offending may not be unacceptable, while a low risk of very serious offending may be. The assessment is always fact-specific.

Can I make a further bail application if bail has been refused?

Yes, but there are limitations. A court must not hear a further application unless it is the first or second application since you were taken into custody, new facts or circumstances have arisen since bail was refused, you were unrepresented when bail was refused, or bail was refused by a bail justice. Genuinely new information — a change in your circumstances, a development in the prosecution case, or the passage of significant time — can found a further application, which is treated as a fresh hearing.

Do I need a lawyer for a serious bail application?

Yes. Bail applications for serious offences are legally and factually complex. The tests are demanding and the way the application is prepared and presented — including the evidence adduced and the arguments made — can make a significant difference to the outcome. An experienced criminal lawyer can assess your prospects, identify the strongest available arguments, and present your case as effectively as possible.

Related Guides

You may also find the following guides useful:

  • Guide to Bail Variation and Revocation — how bail conditions can be changed, and when bail can be revoked