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 released. The consequences have been telling in that our remand centres have unprecedented numbers of persons awaiting resolution of their matters.

Harder to get bail

When the police oppose bail, the person charged has to establish either “compelling reasons” or “exceptional circumstances” that they should not be incarcerated. The difference between these two depends on the charges. However exceptional circumstances applies if you commit more serious offences, such as murder, and is a higher bar to meet.

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

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.