5. Bail — Master Reference (Vic)¶
Scope and currency
Cheat sheet · Bail Act 1977 (Vic) · current to the Bail Further Amendment Act 2025 (Vic) and the s 4AA(4A) repeat-indictable uplift (commenced 31 March 2026)
Starting point — s 4: an accused being held in custody is entitled to be granted bail unless the Act requires the decision maker to refuse it. Order of analysis:
-
identify the applicable test (ss 4AAA, 4AA);
-
the applicant satisfies any step 1 test (s 4A / s 4C); (3) in every case apply unacceptable risk (ss 4D, 4E).
The s 3AAA surrounding circumstances are a persistent overlay on all three (ss 4A(3), 4C(3), 4E(3)(a)).
Part A — Guiding principles and who decides¶
s 1B guiding principles¶
• s 1B(1AA) — community safety: maximising the safety of the community and of persons affected by crime to the greatest extent possible is of "overarching importance" (inserted by the Bail Amendment Act 2025 (Vic), commenced 26 March 2025). Not an absolute maximum — it must leave room for the other principles.
• s 1B(1) — countervailing principles: the decision maker must also take account of the presumption of innocence and the right to liberty, and promote fairness, transparency, consistency and public understanding of bail decision making.
• Effect on the tests: s 1B(1AA) does not substantively alter the test for exceptional circumstances; it affects how surrounding circumstances are weighed (Re SL). For children it is read through the lens of s 3B(1)(h) (Re SL).
• "Bail decision maker" (s 3): a court, a bail justice, a police officer, or the sheriff / authorised persons.
Part B — The decision sequence¶
GATE 0 Summary-offence filter (s 4AAA)
Is it a summary offence not listed in Schedule 3? → Yes: bail must not be refused — unless (a) the accused has a terrorism record or poses a terrorism risk, or (b) bail was previously revoked for those offences. Otherwise grant; no test engaged. → No / exception applies: go to Gate 1.
GATE 1 Identify the step 1 threshold test (s 4AA)
How is the offence classified?
| Classification | Step 1 test | Provision |
|---|---|---|
| Schedule 1 offence | Exceptional circumstances | s 4AA(1); s 4A |
| Schedule 2 offence (no uplift) | Show compelling reason | s 4AA(3); s 4C |
| Non-scheduled + terrorism record / terrorism risk | Show compelling reason | s 4AA(3)–(4) |
| Indictable offence committed while on bail for an earlier indictable offence (four criteria met) | Show compelling reason | s 4AA(4A) |
| Non-scheduled, no terrorism, no uplift | No step 1 test → Gate 2 | s 4D(b) |
| GATE 1A Schedule 2 uplift check (s 4AA(2)©) | ||
| Schedule 2 offence allegedly committed while on bail / summons / at large awaiting trial or sentence / remand / CCO / parole for any Sch 1 or Sch 2 offence? → Yes: uplifts to exceptional circumstances. → No: stays at show compelling reason. |
GATE 1B Repeat-indictable uplift (s 4AA(4A)) — commenced 31 March 2026
Is the accused charged with an indictable offence (the "later indictable offence") allegedly committed while already on bail for an earlier indictable offence? Uplifts from the prima facie right to bail to show compelling reason. Triggered even if the earlier (first-in-time) indictable offence is itself a Schedule 4 or Schedule 5 offence or has already resolved or been withdrawn: the statutory trigger relies on the applicant's legal status at the time the later offence was allegedly committed, not their status at the time the application is heard. s 4AA(4D) — multiple later offences: where some but not all later indictable offences are exempt (Sch 4 / Sch 5) or not imprisonable, the show-compelling-reason test still applies. → Yes — and all four criteria met: show compelling reason applies. The four criteria: - the accused is also charged under s 30B (committing an indictable offence whilst on bail) in respect of the later offence; - the exceptional circumstances test does not already apply; - the later offence is punishable by imprisonment (determined objectively by reference to the statutory maximum); and - the later offence is not exempt under Schedule 4 or Schedule 5. → No / a criterion fails: no uplift on this basis; the offence's ordinary classification (Gate 1) governs.
Double uplift abolished (25 March 2024)
The Bail Amendment Act 2023 (Vic) repealed the offence of committing an indictable offence while on bail and abolished the "double uplift": a non-scheduled indictable offence committed while on bail for another non-scheduled indictable offence no longer triggers a step 1 test. Pre-reform authority applying a step 1 test to non-scheduled offences via the former mechanism must be treated with strict caution. The s 4AA(4A) repeat-indictable uplift (Gate 1B) is the replacement, in force from 31 March 2026; it operates through the s 30B charge + Schedule ⅘ structure, not the abolished doctrine.
GATE 2 Unacceptable risk (s 4E) — applies in EVERY case
Prosecutor bears the onus (s 4E(2)) both as to the existence of a risk and that the risk is unacceptable. The applicant bears no burden (Re LD). Consider whether conditions can mitigate the risk to an acceptable level (s 4E(3)(b)). → After a step 1 test is satisfied: step 2 (s 4D(a); ss 4A(4), 4C(4)). → Where no step 1 test applies: standalone threshold (s 4D(b)).
GATE 2A s 4F 'high degree of probability' overlay (from 30 September 2025)
Specified high-harm offence allegedly committed while the accused was already on bail for one of those same offences? → Yes: any risk that the accused would commit a Sch 1 or Sch 2 offence is statutorily deemed unacceptable unless the decision maker is satisfied there is a high degree of probability the accused would not commit an indictable offence referred to in s 4F(1)(a). Onus effectively flips to the applicant; standard approaching certainty. → s 4F(3) preserved: nothing in s 4F prevents the decision maker finding, for other reasons, that a risk under s 4E(1)(a) is unacceptable.
Four tests at a glance¶
| Test | Trigger | Provision | Onus | Standard / meaning |
|---|---|---|---|---|
| Exceptional circumstances | - Schedule 1; or - Sch 2 uplifted (s 4AA(2)©) |
s 4A / s 4AA(1) | Applicant (s 4A(2)) | "Out of the normal" / "out of the ordinary" (Re Gloury-Hyde; Re Cartledge (Bail Application)); flexible word, not arithmetic, need not be unique or unprecedented (Re Granata); ultimate question is whether continued pre-trial detention is unjust (Roberts v The Queen VSCA 28) |
| Show compelling reason | - Schedule 2 (no uplift); - non-scheduled + terrorism; - repeat-indictable uplift (s 4AA(4A)) |
s 4C / s 4AA(3)–(4A) | Applicant (s 4C(2)) | A "forceful, and therefore convincing, reason showing that in all the circumstances the continued detention of the applicant was not justified"; need not be irresistible or exceptional — simply "difficult to resist" (Re Ceylan VSC 361). Plainly intended to be less difficult than exceptional circumstances, but a higher hurdle than the default |
| Unacceptable risk | Every case | s 4E / s 4D | Prosecutor (s 4E(2)) | Not merely any risk of reoffending (Hall v Pangemanan); a relative assessment balancing likelihood against the magnitude of the consequences (Re Boland). High risk of minor offending may be acceptable; low risk of very serious offending may not be (Hall v Pangemanan) |
| High degree of probability | s 4F high-harm offence while on bail for one of the same | s 4F | Effectively applicant (s 4F(2)); ultimate burden still prosecution (note to s 4F(3), s 4E(2)(b)) | Exceeds the balance of probabilities — a standard approaching certainty; objective and predictive, not judicial intuition. Requires concrete evidence of an incapacity to offend in the proposed bail environment, not merely an intention to comply |
Schedules that drive the routing¶
| Schedule | Contents (per the sources) | Effect |
|---|---|---|
| Schedule 1 | The most serious offences known to the law: treason, murder, commercial quantity drug trafficking. From 26 August 2025 also armed robbery, aggravated burglary, home invasion and carjacking (reclassified up from Sch 2) | Exceptional circumstances (s 4AA(1)) |
| Schedule 2 | Serious indictable offences below the utmost tier of gravity: manslaughter, intentionally causing serious injury, kidnapping, threats to kill that are family violence offences, serious driving and firearm offences, and specified FVPA contravention offences | Show compelling reason (s 4AA(3)), unless uplifted |
| Schedule 3 | The listed summary offences that fall outside the s 4AAA protection | Removes the s 4AAA bar on refusing bail |
| Schedule 4 | Absolute carve-out from the s 4AA(4A) uplift — a later indictable offence within Sch 4 cannot trigger the uplift | No repeat-indictable uplift |
| Schedule 5 | Conditional carve-out — the uplift does not apply unless the prosecution satisfies the decision maker that a threshold is met. Examples (Crimes Act 1958 (Vic)): theft (s 74) where the item stolen is a motor vehicle or its value is $2,500 or more; criminal damage (s 197(1), (3)) where repair cost is $2,500 or more | If the prosecution fails to establish the threshold, the accused retains the prima facie entitlement to bail (subject to unacceptable risk) |
Part C — The tests in detail¶
s 4A Exceptional circumstances — Schedule 1
→ Onus: the applicant bears the burden of satisfying the decision maker that exceptional circumstances exist (s 4A(2)). → Meaning: not statutorily defined. Must take the case "out of the normal" or "out of the ordinary" (Re Gloury-Hyde VSC 393; Re Cartledge (Bail Application)). A high hurdle, but "exceptional" is an ordinary, flexible English word, not an arithmetic measure, and does not require the circumstances to be unique or unprecedented (Re Granata VSC 879). The central question: are the circumstances such as to render continued pre-trial detention unjust, even in relation to very serious offending (Roberts v The Queen VSCA 28). → Single factor or combination: may be established by a single compelling factor or by a combination of factors that individually would fall short (Re CT). → Category 1 — delay: inordinate delay in bringing the matter to trial, particularly where time on remand would exceed the likely sentence of imprisonment (HA (a pseudonym) v The Queen VSCA 64; Re Barda VSC 716). Of "particular significance", but not independently determinative (Danny Zayneh v R). → Category 2 — weakness of the Crown case: severe weakness, such as where the prosecution is foredoomed to fail (Turner v Lill (No 2) VSCA 255). → Category 3 — personal circumstances: significant health issues lacking adequate and proper treatment in custody (Re Nicholson VSC 221); unacceptably adverse impact of incarceration on mental health (Re Dickenson); exceptional family hardship such as sole caring responsibilities, in combination with other factors (Re O'Shea); unfitness to plead where permanent intellectual disability makes indefinite remand for minor charges unjust (Hall v Pangemanan). → Two-stage discipline: establishing exceptional circumstances does not guarantee bail — s 4A(4) requires the decision maker to move to step 2, and bail must still be refused if the prosecution establishes unacceptable risk (Re Cassar). → Relationship with s 4E: the same factual variables inform both inquiries but they remain conceptually distinct (Re Sipser). The absence of an unacceptable risk is a relevant surrounding circumstance capable of contributing to exceptional circumstances, but cannot alone establish them — that would impermissibly subsume the two steps into one (Re Gloury-Hyde; Re SL).
Part 1 — Exceptional circumstances (s 4A)¶
| Case | Facts | Outcome | Decisive factors & ratio |
|---|---|---|---|
| Re Gloury-Hyde VSC 393 | 23-yo man; trafficking a commercial quantity of drugs (Schedule 1). Acquired Brain Injury and cognitive impairments. | Granted | Priest JA: exceptional circumstances rarely lie in a single isolated factor but in a matrix of combined factors — here (1) youth and cognitive vulnerability in custody; (2) a stable address and NDIS-funded / disability-specific treatment; and (3) the complete absence of unacceptable-risk factors (a negligible risk profile can actively contribute to a finding of exceptional circumstances) — cumulatively "out of the ordinary". |
| Re Cartledge (Bail Application) VSC 177 | Aboriginal man; murder and arson causing death (Schedule 1). Trial jury discharged after key Crown witness (Sean Warby) failed a subpoena and fled; Warby later extradited and bailed on strict police-monitored conditions to attend for pre-recording. Applicant relied on 771 days of delay, alleged weakness of the Crown case, and the Crown's concession of no unacceptable risk. | Refused | Taylor JA: the delay / weak-case arguments depended entirely on the speculative assumption that Warby would breach bail and not attend. Under daily reporting, curfew checks and with his child residing with him, Warby was highly likely to appear — so the Crown case was not weak and the trial would proceed promptly. The mere absence of unacceptable risk does not, without more, establish exceptional circumstances on a murder charge. |
| Re Martinow VSC 118 | Aggravated home invasion (Schedule 1). Magistrate granted bail without recording reasons; on the DPP's s 18A appeal, Martinow relied on extreme family hardship (partner left to care for three young children, one with special needs; 11-yo son at risk of losing his only surviving biological parent). Active FINKS OMCG member. | Bail revoked | Beale J: family hardship and incarceration-related disruption do not, of themselves, amount to exceptional circumstances (the partner had community support and her Year 12 daughter to assist). In any event, an unacceptable risk of flight and witness interference arose from his high-ranking OMCG associations and the explicit fear of reprisals expressed by civilian witnesses. |
| Re Nguyen (Bail Application) VSC 179 (aff'd Nguyen v The King VSCA 153) | 28-yo; cultivating and trafficking a commercial quantity of cannabis (sophisticated Braeside factory nursery, hundreds of plants); attempted to flee on arrest. Bridging visa, no legal right to work. Partner with extremely severe postnatal depression caring for a toddler and newborn alone. Friend offered a $50,000 surety. Factory leased using high-quality forged passports and licences. | EC met, but refused on UR | Gorton J (aff'd CA): exceptional circumstances established — no criminal record, prior bail compliance, and severe clinically documented family hardship. But bail refused for unacceptable risk of flight and reoffending: no ties to Victoria, bridging-visa status and access to a sophisticated identity-forgery network made him an extreme flight risk; with no right to work and a family to support, a real risk of returning to trafficking. The $50,000 surety was insufficient — the friend too distant to exert protective influence. |
s 4C Show compelling reason — Schedule 2
→ Onus: the applicant bears the burden (s 4C(2)); the reason must be established under s 4C(1A). → Meaning: a "forceful, and therefore convincing, reason showing, that in all the circumstances, the continued detention of the applicant was not justified" (Re Ceylan VSC 361). Need not be irresistible or exceptional — simply "difficult to resist". → Relative position: plainly intended to be less difficult to satisfy than exceptional circumstances (Re Ceylan), yet a higher hurdle than the default unacceptable-risk position. → Method: a synthesis of all relevant factors compelling the conclusion that detention is unjustified (Re Ceylan). → Categories: (i) significant delay in the court process (Re Barda); (ii) weakness in the prosecution case (Re Ceylan); (iii) personal circumstances — youth, special vulnerability, lack of criminal history (Re Troon); (iv) realistic prospect that the remand period will exceed the likely sentence (Re Barda); (v) availability of bail support, stable accommodation, or highly regarded residential rehabilitation (Re Alsowafi; Re Gaylor); real prospects of rehabilitation through community treatment of mental health issues (Re Ceylan). → Two-stage discipline: even if a compelling reason is established, the decision maker must move to step 2 and refuse bail if the prosecution establishes unacceptable risk (s 4C(4); s 4D(a)). → Overlay: s 4C(3) mandates that the decision maker take into account the s 3AAA surrounding circumstances.
Part 2 — Show compelling reason (s 4C)¶
| Case | Facts | Outcome | Decisive factors & ratio |
|---|---|---|---|
| Re Ceylan VSC 361 | Multiple counts of fraud / deception involving significant sums in an alleged Ponzi scheme; strong prosecution case. No prior criminal history; sought a compelling reason on personal background and clean record. | Refused | Beach JA: a compelling reason is not merely a "good" or "sensible" reason but one "difficult to resist", derived from a holistic synthesis of all factors (strength of the Crown case, delay, risk). The exceptionally strong Crown case raised the incentive to flee; a clean record did not synthesise into a reason sufficient to overcome the unacceptable risk of flight and reoffending. |
| Re Gaylor VSC 46 | 22-yo; sex offences against a person under 16. Limited prior offending, strong family support, accepted into CISP. | Granted | Where granting bail is likely to be in the community interest, that is a principal factor supporting a compelling reason. Community safety under s 1B has two dimensions — immediate short-term safety (incarceration) and long-term safety (rehabilitation addressing the root causes of offending). Denying therapeutic treatment and family support would increase long-term risk, so community safety was best maximised by release on strict conditions. |
s 4E Unacceptable risk — the universal test
Applies in every bail decision: either as step 2 following satisfaction of a step 1 test (s 4D(a)), or as the standalone threshold where no step 1 test applies (s 4D(b)). → The four enumerated risks (s 4E(1)(a)): the accused would, if released, (iaa) commit a Schedule 1 or Schedule 2 offence; (i) otherwise endanger the safety or welfare of any other person; (iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or (iv) fail to surrender into custody in accordance with the bail undertaking. → The risk must be "unacceptable" (s 4E(1)(b)): not merely any risk of reoffending (Hall v Pangemanan). A relative assessment balancing the likelihood of the risk occurring against the magnitude of the consequences if realised (Re Boland). A high risk of minor offending may not be unacceptable; a comparatively low risk of very serious offending may necessitate refusal (Hall v Pangemanan). → Onus: the prosecutor bears the burden as to both the existence of a risk and that the risk is unacceptable (s 4E(2)). The applicant bears no burden with respect to unacceptable risk or its absence (Re LD). → Standard of proof: balance of probabilities. Where the accused is a child, unacceptable risk must be demonstrated "with cogent evidence to a high degree" (Re PJ). → Conditions (s 4E(3)(b)): the decision maker must consider whether any conditions could be imposed to mitigate the risk so that it is not unacceptable; s 5AAA(1) then creates a positive duty to impose them. → Surrounding circumstances (s 4E(3)(a)): the 14 non-exhaustive s 3AAA variables govern the factual matrix; the determination is the product of an informed, intuitive evaluation of interacting circumstances (Ali El Nasher v DPP).
Part 3 — Unacceptable risk (s 4E)¶
| Case | Facts | Outcome | Decisive factors & ratio |
|---|---|---|---|
| HA (a pseudonym) v The Queen VSCA 64 | 15-yo Aboriginal child; PTSD, Complex Developmental Trauma and severe intellectual disability giving the cognitive capacity of a 4–6-yo. Burglary, criminal damage, assault and 67 counts of committing an indictable offence on bail during an ongoing spree. Crown conceded that, if found guilty, HA was highly unlikely to receive youth detention. | Granted (appeal allowed; strict conditions) | Maxwell P and Kaye JA: unacceptable risk is relative to all the circumstances. (1) Avoidance of preventative detention — remanding a child facing no realistic prospect of post-sentence imprisonment is "akin to a form of preventative detention", "alien to fundamental principles". (2) Childlike functioning — high vulnerability to abuse and criminogenic peer contamination in custody; a level of risk "unacceptable" in an adult must be tolerated and managed creatively via tailored support conditions for a severely disabled child. |
| Hall v Pangemanan VSC 533 | 37-yo with an intellectual disability and severe alcoholism; found permanently unfit to stand trial. Arrested for public drunkenness and breaching a police-imposed curfew, which uplifted the charge to a Schedule 1 exceptional-circumstances position. Conceded near-certain (100%) risk he would get drunk in public again. | Granted (own undertaking, static address) | Croucher J — the "paradox of minor offending": s 4E is concerned with unacceptable risk, not any risk. A low risk of a very serious offence may be unacceptable; a high risk of extremely minor, non-violent offending (public drunkenness) is acceptable and must be tolerated. Remanding a permanently unfit disabled man for minor offences carrying no custodial sentence is intolerable — "we cannot keep locking people up in those circumstances". |
| Re SS VSC 618 | 41-yo who had previously served a sentence for murder; subject to a Supervision Order under the Serious Offenders Act 2018. Charged with 11 counts of contravening the Supervision Order (technical non-compliance — failing to report, curfew breaches) and 2 counts of committing an indictable offence on bail. Argued under Hall these were low-level technical breaches. | Refused | Tinney J distinguished Hall: when a convicted murderer repeatedly breaches a Supervision Order it is not a minor event but a systemic failure of the monitoring regime. An offender who refuses to submit to authority and cannot be monitored poses an** unmanageable high risk; the sheer volume (11 counts) showed an entrenched refusal to comply. |
| Re SL VSC 571 | 15-yo Samoan boy, no priors; armed robbery, theft and committing an indictable offence on bail; first time in custody; highly supportive parents; assessed suitable for Youth Justice Supervised Bail. Heard post-August 2025 under the new reforms (s 1B(1AA) community safety of "overarching importance"; "last resort" removed from s 3B(1)(b)). | Granted | Incerti J resolved the interaction of s 1B(1AA) and s 3B: community safety is not a zero-sum game achieved only by incarceration. Child remand poses profound criminogenic risks; maximising community safety "to the greatest extent possible" is best achieved long-term by releasing the child to supportive parents and YJ supervision. Judicial notice of SL's heritage (s 3B(1)(j)) to prevent disproportionate over-representation of culturally diverse cohorts on remand. |
Summary matrix¶
| Case | Test | Fact summary | Outcome | Ratio |
|---|---|---|---|---|
| Re Gloury-Hyde | s 4A (EC) | 23yo, ABI, commercial drug trafficking | Granted | Synthesis of personal vulnerability, NDIS treatment and a negligible risk profile cumulatively met the EC standard |
| Re Cartledge | s 4A (EC) | Murder; relied on delay and witness non-attendance | Refused | Witness under strict bail and likely to attend; delay / weak-case arguments speculative; absence of risk not enough |
| Re Martinow | s 4A (EC) | Aggravated home invasion; FINKS OMCG member argued family hardship | Revoked | Hardship to dependents is not EC; high risk of flight and witness intimidation |
| Re Nguyen | s 4A + s 4E | Sophisticated cannabis crop; partner postnatal depression; fake IDs used | EC met; UR failed | EC satisfied on family clinical depression, but forged documents and no work rights created unmitigable flight / reoffending risk |
| Re Ceylan | s 4C (CR) | Ponzi fraud; no priors but very strong Crown case | Refused | "Compelling" requires a reason difficult to resist; strong Crown case increases flight risk and defeats it |
| HA v The Queen | s 4E (UR) | 15yo Aboriginal child, cognitive age 4–6, 67 bail offences; non-custodial sentence likely | Granted | Remanding a child unlikely to serve detention is preventative detention; risk is relative and must be managed therapeutically |
| Hall v Pangemanan | s 4E (UR) | 37yo disabled man, permanently unfit; curfew breach and public drunkenness | Granted | High risk of minor offending is acceptable to the community; common sense forbids locking up low-level offenders indefinitely |
| Re SS | s 4E (UR) | Convicted murderer on Supervision Order; 11 counts technical non-compliance | Refused | Technical breaches undermined the regime designed to manage high violent risk, rendering him unmanageable |
| Re SL | s 4E (UR) | 15yo Samoan boy, armed robbery on bail; post-2025 amendments | Granted | Community safety (s 1B) achieved long-term by rehabilitation and avoiding the criminogenic harms of child remand |
s 4F High degree of probability — statutory presumption of unacceptable risk
Inserted by the Bail Further Amendment Act 2025 (Vic); commenced 30 September 2025. → Trigger offences (s 4F(1)(a)), Crimes Act 1958 (Vic): - armed robbery (s 75A), - aggravated burglary (s 77), - home invasion (s 77A), - aggravated home invasion (s 77B), - carjacking (s 79), - aggravated carjacking (s 79A). → Gateway (s 4F(1)(a)–(b)): the mechanism applies only if, at the time of the alleged offending, the accused was already on bail for one of these specific offences. → Substance (s 4F(2)): any risk that the accused would commit a Schedule 1 or Schedule 2 offence is statutorily deemed unacceptable for s 4E purposes, unless the decision maker is satisfied there is a "high degree of probability" the accused would not commit an indictable offence referred to in s 4F(1)(a). → Onus in practice: the note to s 4F(3) confirms the prosecution retains the ultimate burden under s 4E(2)(b); but mechanically, once the prosecution establishes a risk of a Sch ½ offence that risk is unacceptable by default, and the onus flips to the accused to prove a negative. → Standard: exceeds the balance of probabilities — approaching certainty. An objective, predictive evidentiary standard, not judicial intuition. Requires concrete evidence of an incapacity to offend given the proposed bail environment (e.g. 24/7 supervision in a secure residential rehabilitation facility), not merely an intention to comply. → Preservation (s 4F(3)): nothing in s 4F prevents the decision maker being satisfied for other reasons that a risk of a Sch ½ offence, or any other s 4E(1)(a) conduct, is unacceptable.
Part D — Surrounding circumstances (s 3AAA)¶
Mandatory across every test. s 3AAA is engaged when determining exceptional circumstances (s 4A(3)), compelling reason (s 4C(3)) and unacceptable risk (s 4E(3)(a)). The list is expressly non-exhaustive — s 3AAA(1) requires the decision maker to take into account "all the circumstances that are relevant to the matter including, but not limited to" the enumerated factors.
| Para | Factor |
|---|---|
| (aa) | Whether the accused would likely be sentenced to imprisonment and, if so, whether time on remand would exceed that term (inserted by the Bail Amendment Act 2023 (Vic), 25 March 2024) |
| (a) | Nature and seriousness of the alleged offending |
| (b) | Strength of the prosecution case |
| © | The accused's criminal history |
| (d) | Compliance with conditions of any earlier grant of bail or undertaking |
| (e) | Whether the accused was on bail, summons, remand, at large, on parole or subject to a CCO at the time of the alleged offending |
| (f) | Whether an FVIO, family violence safety notice or recognised DVO is in force |
| (g) | Personal circumstances — caring responsibilities, associations, home environment and background |
| (h) | Any special vulnerability: being an Aboriginal person, a child, pregnant, experiencing ill health or mental illness, or having a physical / intellectual disability or cognitive impairment |
| (i) | Availability of treatment or bail support services |
| (ia) | Availability of Part 2A electronic monitoring conditions (inserted by the Youth Justice Act 2024 (Vic)) |
| (j) | Any known or likely view of an alleged victim as to the grant of bail or its conditions |
| (k) | Length of time likely to be spent in custody if bail is refused |
| (l) | Likely sentence if found guilty |
| (m)–(n) | Whether the accused has expressed support for, or associated with, terrorist acts or organisations |
Weight — how the factors interact¶
• No single factor is determinative: the factors are interacting inputs into an informed, intuitive evaluation, not standalone determinants (Ali El Nasher v DPP; Zayneh v R).
• Weight is for the decision maker: determined on the specific facts of the case (Roberts v The Queen).
• Delay — s 3AAA(1)(aa): of "particular significance" across both threshold and unacceptable risk assessments (HA (a pseudonym) v The Queen); but even inordinate delay is not independently determinative and must be weighed with all other circumstances (Danny Zayneh v R).
• Strength of the Crown case — s 3AAA(1)(b): the assessment is often provisional at the bail stage; the decision maker is not required to make detailed findings on the evidence, and it remains only one factor in the matrix.
• Youth and Aboriginality: given significant weight (Re JO [2018] VSC 438; HA v The Queen).
• Not displaced by the special-category provisions: s 3AAA operates in addition to s 3A (Aboriginality), s 3B (children) and s 5AAAA (family violence).
Part E — Special categories¶
s 3A Aboriginal and Torres Strait Islander applicants
The Bail Amendment Act 2023 (Vic) (25 March 2024) repealed and substituted s 3A. The former wording requiring consideration of "cultural background, including the person's ties to extended family or place" (applied in Re GG) has been displaced. → Mandatory matters (s 3A(1)): issues arising due to the person's Aboriginality, including: - historical and ongoing discriminatory systemic factors resulting in over-representation in the criminal justice system and remand population; - the risk of harm and trauma in custody; - the importance of connection to culture, kinship, family, Elders, country and community; - specific issues relating to the person's history (trauma, intergenerational trauma, family violence, out of home care, social or economic disadvantage, ill health, disability, caring responsibilities); and - any other relevant cultural issue or obligation. → Standing: s 3A operates "in addition to any other requirements of this Act". It supplements, not substitutes, the s 3AAA inquiry, which separately identifies Aboriginality as a special vulnerability (s 3AAA(1)(h)(i)). It sits apart from the other surrounding circumstances and must be at the forefront of reasoning on unacceptable risk (Re Terei). → Weight: a "weighty factor", but it does not create a more lenient test or usurp the decision maker's discretion (Re Terei). → Threshold tests: highly relevant to whether exceptional circumstances (ss 4A / 4AA) or compelling reason (ss 4C / 4AA) are met; the s 3A factors, viewed in the context of systemic incarceration, may satisfy those tests, particularly in combination with personal circumstances (Re McLaughlin). → Unacceptable risk: the statutory acknowledgement of over-representation in s 3A(1)(a) supports the common law duty not to compound Aboriginal incarceration rates without good reason (HA (a pseudonym) v The Queen). Aboriginality and the harm of contributing to over-incarceration may act as a tipping point, rendering acceptable a risk that might otherwise teeter on the edge of unacceptable (Re Campbell; Re Terei). → Sentencing prospects: Bugmy principles may be relied on to argue for a non-custodial ultimate sentence within the surrounding circumstances inquiry (Re TQ). → Conditions: must be culturally appropriate — when considering a bail support service condition, the decision maker must take into account the importance of Aboriginal people participating in Aboriginal bail support services where appropriate and available (s 5AAA(4A)). → Procedure: investigating officials must ask persons in custody if they are Aboriginal (s 464AAB Crimes Act 1958 (Vic)) and must notify the Victorian Aboriginal Legal Service (s 464FA). The decision maker must consider s 3A(1)(a)–© regardless of whether any evidence or information is put before them (s 3A(3); Re Thorpe VSC 414). → Reasons — mandatory: if bail is refused to an Aboriginal person, the decision maker must explicitly identify the s 3A(1) matters had regard to and record them orally (on an audio / audiovisual record) or in writing (s 3A(5)).
Leading authority¶
| Case | Facts | Outcome | Decisive factors & principles |
|---|---|---|---|
| HA (a pseudonym) v The Queen [2021] VSCA 64 | Aboriginal child (15 yo) with significant intellectual disabilities, He possessed a full-scale IQ of 47, placing him in the Extreme Low Range of Cognitive Ability (below almost all same-age peers) facing multiple violent charges. 4 groups of charges involving attempted armed robbery, theft of motor vehicle and aggravated burglary and 67 charges of CIOB. Psychologist described his capacity to evaluate his actions as morally wrong was described as "virtually non-existent", and he had previously been found doli incapax in relation to multiple historical charges (including recklessly causing injury, threats to kill, and assault with a weapon). Severe Intergenerational and Personal Trauma. Extreme Vulnerability in Remand: Due to his cognitive deficits and trauma-induced maladaptive behaviors, he was highly vulnerable to exploitation by older offenders, prone to follow others committing offences to seek a sense of belonging, and faced a severe risk of sexual exploitation and deep entrenchment in the criminal justice system if held in custody. |
Bail granted (appeal allowed) | s 3A is not an innocuous formality or "box-ticking exercise" — it requires a "radical transformation" of the decision-making process, informing every statutory element (exceptional circumstances, compelling reasons, unacceptable risk). BDMs have a common law duty not to further compound First Nations incarceration rates "unless there is good cause to do so". The unique cultural detriment of custody (disconnection from kin, community and country) can establish exceptionality and render an otherwise unacceptable risk acceptable. CoA conclude that the appellant’s risk was NOT "unacceptable" in light of five powerful, cumulative circumstances: - The Unlikelihood of a Custodial Sentence (The Most Decisive Factor) It was common ground, conceded by the prosecution, that even if found guilty of all active charges, the appellant was highly unlikely to receive a sentence of detention from the Children's Court. The Principle of Preventative Detention: The Court of Appeal held that where an accused is unlikely to receive an ultimate custodial sentence, keeping them on pre-trial remand is "akin to a form of preventative detention". In the absence of explicit statutory authority, holding a person in custody solely because of a fear of future offending is "alien to fundamental principles that underpin our system of justice". Furthermore, denying bail in these circumstances creates an unjust incentive where a cognitively impaired child might feel "impelled to plead guilty" simply to secure their release from remand. - Youth and Cognitive Capacity (s 3B) Section 3B of the Bail Act 1977 (as it stood in 2021) reflected the underlying principle that a decision to hold a child in custody must be a measure of last resort. Courts must be astute to avoid detention unless no other reasonable disposition exists. The appellant’s extreme youth (15) and his childlike mental capacity (equivalent to a 4-to-6-year-old) made custody an inappropriate and highly damaging environment. - Aboriginality and Systemic Over-Representation (s 3A) Applying section 3A and section 3AAA(1)(h), the Court recognized the persistent, "unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody". The Court declared that "courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so". Reconnecting a First Nations offender with their culture, family, and Country is a pivotal protective and rehabilitative tool that can divert vulnerable individuals away from entrenched criminal pathways. - Extreme Vulnerability in Custody Because of his cognitive impairment and PTSD, HA was an easy target for manipulation and sexual exploitation in a custodial setting, meaning pre-trial detention was highly likely to entrench him further in the criminal justice system and destroy his personal safety. - The Relative Nature of the "Unacceptable Risk" Test Relying on Mokbel v DPP (No 3), the Court of Appeal re-established that the question of unacceptable risk is not an abstract or absolute test. It "must be relative to all the circumstances" of the case, and particularly to the exceptional circumstances that justify bail. The combination of his extreme vulnerabilities and the unlikelihood of a custodial sentence meant that a level of risk which would otherwise be deemed "unacceptable" had properly to be viewed as acceptable, provided it was managed by structured conditions. - A Structured, Non-Custodial Alternative While the bail plan was risky, it represented a carefully planned and viable alternative to remand, introducing new protective elements (direct Youth Justice supervised appointments and supervised NDIS/paternal contact) to minimize the risk of reoffending. |
Post-reform — bail granted¶
| Case | Facts | Outcome | Decisive factors & principles |
|---|---|---|---|
| Re Terei [2024] VSC 294 | 32-yo Torres Strait Islander and Yorta Yorta woman; burglary, theft, methylamphetamine possession, serious firearms offences (theft / trafficking of firearms) — five of seven stolen firearms unlocated. Offending on bail; history of curfew breaches and failing to answer bail, but curfews breached to escape severe family violence. Active 18-month CCO with treatment conditions. Proposed stable accommodation with former partner's mother (Donna Wells) and casual work with a cousin. | Granted (initial structured two-week monitoring period) | Incerti J: by virtue of her "Aboriginality alone" she faced an elevated risk of harm and trauma in custody. Despite the unrecovered firearms and poor compliance, recovery from addiction is non-linear and subject to relapse. A credible protective accommodation provider plus culturally appropriate therapeutic services via the Koori Court mitigated the risk. "No good reason for contributing to the stark overrepresentation of Aboriginal people on remand". |
| Re Campbell [2025] VSC 591 | 25-yo Wiradjuri man; arson (criminal damage by fire), five counts theft, six charges of committing an indictable offence on bail. First time in adult custody; offending linked to long-term drug addiction and homelessness; no stable family accommodation. Proposed residing as directed by CISP and culturally safe wraparound programs via the Njernda Wellbeing Unit (Dardi Munwurro healing group; Dunyak Woka — to Fish on Country). | Granted | Incerti J: custody experience "alarming" and a "red flag" for trauma (already assaulted on remand). Using homelessness as a primary basis to refuse bail unfairly compounds over-representation; homelessness, viewed through s 3A, "may act as the tipping point" to make the risk acceptable. Community safety is not a "zero-sum game" achieved solely through incarceration — long-term community safety is maximised by supporting rehabilitation on strict therapeutic conditions. To not brutalise or further brutalise a vulnerable individual can prompt community safety in the long term. |
| Re TQ [2025] VSC 82 | Descendant of the Stolen Generation facing violent charges; never previously remanded; severe, deteriorating mental health in custody. | Granted | Elliott J: Stolen Generation background and intergenerational trauma must underpin the entire bail assessment. The opportunity to meaningfully plead in the Koori Court (moderating sentencing and reducing pre-trial delay), with culturally safe support from VALS, MDAS and Dardi Munwurro, minimised the risk. |
| Re McLaughlin [2024] VSC 706 | Female applicant facing violent charges; extensive history of state out-of-home care and childhood trauma; severe, deteriorating mental health in custody. | Granted | Incerti J: severe childhood trauma and foster-care placements constrain freedom of choice, making vulnerable individuals products of their environment — reducing moral culpability and favouring therapeutic community placement over punitive pre-trial detention. s 3A factors, especially combined with personal circumstances, may satisfy the threshold tests. |
| Re GG [2021] VSC 12 (Aboriginal children) | 16-yo Aboriginal child with diagnosed mental health issues; armed robbery and other Schedule 2 offences committed on bail. Breached curfew / residence conditions to escape physical violence at his bail residence. On the Supreme Court application: mother supportive of his return, family mediation had occurred, and a brother (negative influence) had moved out. | Granted | Incerti J: intersectional vulnerability of an Aboriginal child requires ss 3A and 3B to be read and applied together. Pre-trial remand causes severe, irreversible physical and emotional harm to children, alienating them from cultural identity and increasing long-term criminogenic risk. Prior non-compliance reasonably explained by escaping abuse. With VACCA and the Youth Justice Supervised Bail Program, the prosecution failed to establish unacceptable risk; refusal would amount to preventative detention, which Victorian law strictly opposes, particularly for children. |
Post-reform — bail refused¶
| Case | Facts | Outcome | Decisive factors & principles |
|---|---|---|---|
| Re Cartledge (Bail Application) [2025] VSC 177 | Aboriginal applicant charged with murder and, alternatively, arson causing death; 771 days on remand. Trial aborted after the primary prosecution witness (Sean Warby) fled the jurisdiction; Warby later extradited and admitted to bail on strict conditions to attend for pre-recording. Applicant suffered depression and anxiety. Prosecution conceded no unacceptable risk. |
Refused | Charged with murder (Schedule 1), the applicant bore the onus of establishing exceptional circumstances. Taylor JA: Aboriginality, mental health and social disadvantage were highly relevant under s 3A but did not outweigh the extreme gravity of the charges (maximum life). Delay was "less than desirable" but not exceptional — the extradited witness's strict supervision made attendance probable, not speculative. Absence of unacceptable risk alone does not satisfy the exceptional circumstances test; community safety remains of overarching importance (s 1B). |
Forensic take-aways¶
• Substantive, not tokenistic reasoning: actively engage the systemic factors and the unique cultural detriment of custody; "disconnection" from family and Sorry Business is a powerful factor in establishing exceptionality or compelling reason.
• The homelessness "tipping point" (Re Campbell): counter any argument that unstable housing is an unmanageable reoffending risk — housing insecurity is a byproduct of systemic discrimination, so using it to refuse bail compounds over-representation; it should tip the balance to acceptable risk where basic CISP or culturally safe supports are proposed.
• Culturally safe "circuit-breakers": structured, culturally appropriate programs (Njernda, Dardi Munwurro, VACCA). Under s 5AAA(4A), a bail-support-service condition must take into account the importance of the service being Aboriginal-managed or oriented. The support need not render the risk negligible — only act as a circuit-breaker making the risk acceptable.
• Refusal reasons — s 3A(5): on refusal the BDM must record the specific s 3A(1) matters had regard to; strictly monitored in the Supreme Court, though brief oral reasons on an audio-visual record suffice for busy Magistrates' Court lists.
s 3B Children and the youth justice overlay
→ Child-specific considerations (s 3B(1)): apply "in addition to any other requirements" of the Act — alongside, not instead of, s 3AAA and s 4E. They include: preserving and strengthening relationships with parents, guardians and carers (s 3B(1)(d)(i)); supporting the child to live at home or in safe, stable arrangements (s 3B(1)(e)); supporting engagement in education, training or work with minimal interruption (s 3B(1)(f)); minimising the stigma of remand (s 3B(1)(g)); and whether time on remand would likely exceed the eventual term of imprisonment (s 3B(1)(k)). → "Last resort" removed: the 2025 reforms removed the express phrase "with the remand of a child being a last resort" from s 3B(1)(b). "Minimum intervention" must still be imposed (Youth Justice Act 2024 (Vic) s 19), but remand may be that minimum intervention depending on the circumstances (Re SL VSC 571). → s 1B(1AA) through the child lens: the overarching community-safety principle must be viewed through s 3B(1)(h), balancing the short-term removal of the opportunity to offend against the long-term criminogenic risks of incarcerating children (Re SL). → Threshold tests: any assessment of exceptional circumstances or compelling reason must be viewed through the prism of s 3B(1). A combination of circumstances falling short for an adult may achieve a wholly different outcome and justify bail for a child (Re JO, affirmed in Re SL). → Standard of proof on risk: unacceptable risk must be demonstrated "with cogent evidence to a high degree" (Re PJ). → Age of criminal responsibility (from 30 September 2025): raised to 12. Youth Justice Act 2024 (Vic) s 10 creates a conclusive presumption that a child under 12 cannot commit an offence; s 11 codifies the rebuttable presumption of doli incapax for children aged 12 or 13; s 780 amends s 3B(1)© of the Bail Act to compel decision makers to consider that presumption. Transitional: a person cannot be criminally responsible for conduct at 10 or 11, whether the conduct occurred before or after commencement (s 769). → Jurisdiction and custody: the Children's Court is the specialist division (Youth Justice Act 2024 (Vic) s 1). If a bail justice refuses bail, the child must be remanded to appear before the Children's Court on the next working day, or within two working days in a prescribed regional venue (s 13(6) Bail Act). A remanded child must be placed in a youth justice custodial centre, not an adult facility, subject to very narrow exceptions (e.g. a police gaol for a maximum of two working days to facilitate transport) (Youth Justice Act 2024 (Vic) s 155). → Aboriginal children: ss 3A and 3B apply concurrently and must be read together; the shared purpose is to release Aboriginal children on appropriate conditions where possible, protecting them from the unique physical and emotional harms and negative formative influences of custody (Re GG). → Conditions: s 3B(1)(i) requires conditions to be no more onerous than necessary and not to constitute unfair management of the child. If a child lacks capacity or understanding to give a bail undertaking, s 16B permits release where a parent or other person undertakes to produce the child at court. From 22 April 2025, Part 2A introduced a trial of electronic monitoring for children aged 14–17, orderable by the Supreme Court or a prescribed Children's Court following a suitability report (s 17D). The Supreme Court has noted developmental concerns with 24/7 surveillance of youths.
Leading authority¶
| Case | Facts | Outcome | Decisive factors & principles |
|---|---|---|---|
| HA (a pseudonym) v The Queen [2021] VSCA 64 | 15-yo Aboriginal child; extreme compounding vulnerabilities — severe cognitive impairment (full-scale IQ 47, Extreme Low Range; functioning at the level of a 4–6-yo), severe global speech / language disorder, ADHD, PTSD / Complex Developmental Trauma from chronic abuse and neglect; 70 out-of-home care placements since 2013. Serious offences across four briefs — attempted armed robbery with a weapon, burglary, aggravated burglary, motor vehicle theft — plus 67 counts of committing an indictable offence while on bail. 50 days on remand. Charged with Schedule 2 offences committed while on bail for other Schedule 2 offences → exceptional circumstances required (conceded / accepted). Trial judge (Tinney J, Re HA) refused bail for unacceptable risk, sceptical of the Youth Justice community bail plan. |
Granted (appeal allowed; strict conditions) | Risk was "real" but acceptable on five cumulative circumstances. (1) Unlikelihood of a custodial sentence (most significant): where an ultimate custodial sentence is improbable, continued remand is "preventative detention", "alien to fundamental principles", and creates an unjust incentive for a cognitively impaired child to plead guilty to secure release. (2) Youth / cognitive capacity: developmental age of 4–6 made detention inappropriate; avoid detention unless no other reasonable disposition. (3) Extreme vulnerability in custody: high risk of exploitation and sexual abuse, and of entrenchment. (4) Aboriginal heritage (s 3A): reconnection with culture, kin and family is protective; common law duty not to compound over-representation absent "good cause". (5) Relative nature of unacceptable risk (Mokbel v DPP (No 3)): an evaluative judgment; compelling factors can render an otherwise unacceptable risk acceptable — supported by a structured, non-custodial Youth Justice alternative. |
Post-HA — bail granted¶
| Case | Facts | Outcome | Decisive factors & principles |
|---|---|---|---|
| Re AM (a pseudonym) [2025] VSC 637 | Young child with complex diagnosed conditions and no prior convictions; 93 days in custody, 132 days pre-sentence detention. If found guilty, likely a non-custodial supervisory order under s 362 of the Children, Youth and Families Act 2005 (child's best interests paramount; general deterrence does not apply). Time on remand highly likely to exceed any ultimate sentence. |
Granted | Orr JA applied HA: continued remand would be tantamount to impermissible preventative detention. Complex mental health plus remand exceeding any likely sentence heavily outweighed the prosecution's risk arguments. |
| Re BZ [2023] VSC 216 | Young child; contested Children's Court hearings delayed at least six months by brief-disclosure requirements; poor history of compliance on bail. | Granted | Croucher J: refusing bail would be "preventative detention". The six-month delay would cost BZ a schooling year and critical developmental milestones; the therapeutic benefits of continued education and development outweighed the identified risks. |
| Re KA [2022] VSC 277 | Child applicant facing charges where, had he been an adult, bail would have been unhesitatingly refused. | Granted | Beach JA: the s 3B mandatory considerations (preserving family relations, continuing education, minimising stigma, avoiding overly onerous conditions) were of "critical importance" and overrode adult-level risk assessments to mandate release. |
Post-HA — bail refused¶
| Case | Facts | Outcome | Decisive factors & principles |
|---|---|---|---|
| Re MG [2025] VSC 384 | 17.5-yo Aboriginal applicant; serious armed aggravated burglaries. Intellectual disability (less severe than HA's); not engaged in school or work; poor compliance history; rejected by Youth Justice support; proposed residing with a grandfather in extreme poverty with limited supervision. | Refused | Tinney J expressly distinguished HA: MG was older (17.5, not 15), had a less severe disability, no active Youth Justice or educational support, and lacked a highly structured supervised placement. Also decisive: the removal of the "last resort" wording made the Act "a different Act" than when HA was decided, and s 1B(1AA) community safety is now of overarching importance. |
| Re FT [2024] VSC 158 | Child applicant; serious charges; estimated court delay of 6–9 months. | Refused | Elliott J: given the extreme gravity of the offences and the failure of all previous community interventions, remand was a genuine "last resort". Not preventative detention — the delay was not excessive and remand was necessary to protect community safety. |
Legislative evolution & exam traps (2024–2026)¶
• "Last resort" removed: when HA was decided (2021), s 3B(1)(b) contained "with the remand of the child being a last resort"; those words have since been removed. In Re MG the prosecution successfully argued this was a significant statutory shift making it "a different Act".
• Community safety overarching (s 1B(1AA)): elevates "the safety of the community and persons affected by crime" to "overarching importance" at the head of the guiding principles; flagged in Re MG as a change that must guide any child bail assessment.
• HA core principles survive: despite the restrictions, s 3B considerations remain vital and mandatory. The principle that pre-trial remand of a child unlikely to receive a custodial sentence is "akin to preventative detention" remains "a most powerful factor" in establishing both exceptional circumstances and acceptable risk.
s 5AAAA Family violence accused (note: s 5AAAA — not s 5AAAAA)
→ Mandatory inquiry (s 5AAAA(1)): the decision maker must make inquiries of the prosecutor as to whether an FVIO, family violence safety notice (FVSN) or recognised DVO is in force. → Family violence offence (s 5AAAA(2)): if the accused is charged with a family violence offence, the decision maker must consider whether release poses a risk the accused would commit family violence, and whether that risk could be mitigated by imposing a condition or making an FVIO. → Standing: applies in addition to the s 3AAA inquiry and the s 4E test. The existence of an FVIO / FVSN / DVO is itself a mandatory surrounding circumstance (s 3AAA(1)(f)), and sharply informs whether the accused would "endanger the safety or welfare of any other person" under s 4E(1)(a)(i). A history of family violence offending or poor compliance with FVIOs is highly relevant to establishing the risk is unacceptable. → Definitions: "family violence", "family violence intervention order", "family violence safety notice" and "family violence offence" take their meaning from the Family Violence Protection Act 2008 (Vic) (s 3 Bail Act). → Victim's views: the decision maker must take into account any known or likely view of an alleged victim as to the grant of bail or its conditions (s 3AAA(1)(j)). → Which FV offences are scheduled: Schedule 2 (compelling reason) — contravening an FVIO or FVSN (ss 37, 37A, 123, 123A Family Violence Protection Act 2008 (Vic)) where the accused used or threatened violence, provided the accused has a conviction within the preceding 10 years for a violence offence, or the decision maker is satisfied the accused separately used or threatened violence against the protected person; persistent contravention of notices and orders (s 125A(1) FVPA); threat to kill (s 20 Crimes Act 1958 (Vic)) where it is a family violence offence. These elevate to Schedule 1 (exceptional circumstances) if committed while already on bail for a Sch 1 or Sch 2 offence (s 4AA(2)©). → Conditions: s 5AAA(4) permits residential requirements, curfews, geographical exclusion zones, non-contact directives and mandates to comply with existing intervention orders. Conduct conditions must be consistent with any FVIO / FVSN / DVO (s 5AAA(2)©); s 5AAA(3) permits an inconsistent condition if it will better protect the safety or welfare of an alleged victim or protected person; where compliance with both is impossible the family violence order prevails to the extent of the inconsistency (s 175AB FVPA).
s 3AAAA Mental health and cognitive impairment
→ Statutory hooks: "any special vulnerability of the accused", expressly including mental illness, physical or intellectual disability and cognitive impairment (s 3AAA(1)(h)); personal circumstances (s 3AAA(1)(g)); availability of treatment or support services (s 3AAA(1)(i)). "Special vulnerability" is to be interpreted broadly (Re Johnson). → "Vulnerable adult" (s 3AAAA): an adult with a cognitive or mental health impairment causing difficulty understanding rights, making decisions, or communicating a decision. → Cuts both ways on risk: without appropriate psychiatric monitoring, an underlying neuro-developmental disorder or complex trauma may heighten the risk of emotional decline and harm to self or others (Whitten v The King). Conversely, a condition can render a risk acceptable — in Hall v Pangemanan a high risk of reoffending by an intellectually disabled applicant was not "unacceptable" because the offending (public drunkenness) was minor and imprisonment for an offence not warranting gaol was intolerable. → Threshold tests: exceptional circumstances may be established where incarceration would have an unacceptably adverse impact on mental health (Re Dickenson), or where significant medical conditions will not receive adequate and proper treatment in custody (Re Nicholson). Real prospects of rehabilitation through community treatment can constitute a compelling reason (Re Ceylan). → Impact of remand: custodial isolation, overcrowding and poor access to health services risk exacerbating mental illness, with psychiatric impacts particularly acute (Bugmy Bar Book; Palmer v Australian Capital Territory (No 2)). Imprisonment is seriously detrimental, authorities often being inadequately resourced to meaningfully rehabilitate those with serious psychological or behavioural problems (Boulton; Clements; Fitzgerald). → Mitigation packages: CISP offers wraparound psychosocial, medical and housing supports (Re Campbell VSC 591; Re Boland VSC 85). Strict conditions requiring attendance at residential rehabilitation act as a structural substitute for remand, neutralising the drivers of offending (Robinson v The Queen VSCA 161; Re Hamilton-Green VSC 484). → Fitness to be tried: where a permanent intellectual disability renders an applicant unfit to plead, the injustice of indefinite remand for minor charges strongly supports exceptional circumstances (Hall v Pangemanan).
Part F — Conditions and proportionality¶
The framework¶
• Power (s 5(2)): bail may be granted subject to conduct conditions, a requirement for one or more bail guarantees, or a deposit of money. Imposing conditions is not mandatory — an accused may be released on their own undertaking.
• Duty to impose (s 5AAA(1)): the decision maker must impose any condition that will reduce the likelihood the accused may commit a Sch 1 or 2 offence, endanger safety or welfare, interfere with a witness or obstruct justice, or fail to surrender.
• Link to s 4E: s 4E(3)(b) requires consideration of whether conditions may mitigate the risk so that it is not unacceptable — the gateway to a grant where risk would otherwise defeat the application.
• Proportionality (s 5AAA(2)(a)–(b)): each condition and the overall number must be "no more onerous than is required" to reduce the likelihood of the enumerated risks, and must be "reasonable, having regard to the nature of the alleged offence and the circumstances of the accused".
• Not punitive: conditions are protective risk-mitigation tools, not anticipatory punishment. Analogically, YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs HCA 40 held automatic curfew and electronic monitoring conditions on bridging visas prima facie punitive and unjustifiable — restrictive conditions must be strictly tethered and tailored to risk.
• Notice and understanding (s 17(1)): the decision maker must give the accused written notice of their obligations and the consequences of breach, and must be satisfied the accused understands the nature and extent of the conditions and the consequences of non-compliance before release.
• Variation: the power to vary the amount or conditions of bail on application by the accused or prosecutor is governed separately by s 18AC.
Condition categories (s 5AAA(4) unless noted)¶
| Category | Detail | Provision |
|---|---|---|
| Reporting | Regular attendance at a police station | s 5AAA(4)(a) |
| Residence | Reside at a particular address | s 5AAA(4)(b) |
| Curfew | Statutorily capped — must not exceed 12 hours within a 24-hour period | s 5AAA(5) |
| Non-contact / non-association | No contact with specified persons | s 5AAA(4)(d) |
| Travel | Surrender of passport | s 5AAA(4)(e) |
| Geographical exclusion | Exclusion zones | s 5AAA(4)(f) |
| Treatment and support | Attend and participate in bail support services — CISP, drug or mental health rehabilitation. For Aboriginal accused, the importance of participating in Aboriginal bail support services must be considered | s 5AAA(4)(g); s 5AAA(4A) |
| Alcohol / drugs | Prohibition on consuming alcohol or drugs of dependence without lawful authorisation | s 5AAA(4)(i) |
| Comply with IVOs | Mandatory condition to comply with existing intervention orders | s 5AAA(4)(j) |
| Any other condition | Residual power — the vehicle for firearm surrender, which the Act does not expressly list (FVIOs may independently suspend or cancel firearms authorities: s 95 FVPA) | s 5AAA(4)(k) |
| Electronic monitoring | Adults: ss 5AAA(7)–(8). Children 14–17: Part 2A trial from 22 April 2025, on suitability report, by the Supreme Court or a prescribed Children's Court (s 17D). The Bail Further Amendment Act 2025 clarified EM is restricted to these statutory pathways |
ss 5AAA(7)–(8); Pt 2A; s 17D |
| Bail guarantee (surety) | Financial deposit or guarantee. The Bail Amendment Act 2023 replaced "surety" with "bail guarantee" / "bail guarantor" (25 March 2024). The decision maker must have regard to the financial means of the accused and the guarantor | s 5(2)(b); s 5AAB |
| FV consistency | Conduct conditions must be consistent with any FVIO / FVSN / DVO; an inconsistent condition is permitted only if it better protects the alleged victim; the FV order prevails where compliance with both is impossible | s 5AAA(2)©; s 5AAA(3); s 175AB FVPA |
Part G — Procedure¶
STEP 1 First decision — police and bail justices
→ On arrest: police (a sergeant or above) must consider bail without delay (s 10). → If police refuse: the accused must be brought before a court or, if outside court sitting hours, a bail justice (s 10A / s 10AA). → Child refused by a bail justice: must be remanded to appear before the Children's Court on the next working day, or within two working days if the proper venue is in a prescribed regional area (s 13(6)).
STEP 2 Further applications to a court (ss 18, 18AA)
Following a refusal, an accused may apply to a court for bail (s 18). An accused refused bail may make a further application to the court to which they are remanded to appear, or to the Supreme Court if charged with murder or treason (s 18(3)). → s 18AA(1) — the court must NOT hear the application unless: (aa) it is the first or second instance of applying to a court since being taken into custody (inserted by the 2023 amendments); (a) new facts or circumstances have arisen; (b) the applicant was previously unrepresented; or © the previous refusal was by a bail justice. → Beyond two applications: subsequent applications require new facts or circumstances justifying reconsideration of the refusal (DPP (Vic) v Roberts (No 2)).
STEP 3 Variation of conditions (ss 18AC, 18AD)
→ Who may apply: the accused or the prosecution may apply to vary the amount or conditions of bail (s 18AC). → Test: the decision maker must take into account the surrounding circumstances and may vary the conditions if it is reasonable to do so (s 18AD).
Part H — Review and appeal¶
No general right of appeal for an accused. The Bail Act does not confer a general right of appeal on an accused. The accused's route is a further application under s 18; true appeals run through the Criminal Procedure Act 2009 (Vic). By contrast, s 18A confers an express right of appeal on the DPP.
| Who | From → To | Provision | Nature of the review |
|---|---|---|---|
| Accused | Refusal → further application to the court remanded to appear; Supreme Court if murder or treason | s 18(3); s 18AA | Fresh application, subject to the s 18AA gateway |
| Accused | Magistrates' Court → County Court | s 265 Criminal Procedure Act 2009 (Vic) | Hearing de novo — no need to establish error |
| Accused | County / Supreme Court → Court of Appeal | s 310 Criminal Procedure Act 2009 (Vic) | Appeal |
| DPP | Grant of bail → Supreme Court | s 18A(1) | Error-based (appeal in the strict sense) |
| DPP | Refusal to revoke bail → Supreme Court | s 18AG | Appeal |
| Either party | Single judge of the Supreme Court → Court of Appeal | s 18A(12) | Onward review |
| s 18A DPP appeal against a grant of bail | |||
| → Threshold to appeal (s 18A(1)): the DPP must be satisfied that the conditions are insufficient or the decision contravenes the Act, and that an appeal is in the public interest. → Nature — two steps, not de novo by default: because bail decisions are discretionary and interlocutory, the review is governed by House v The King and requires appellate restraint (FT (a pseudonym) v The King; Worboyes v The Queen VSCA 169; Zayneh v The King VSCA 311): Step 1: the DPP must establish that the discretion miscarried — acting on a wrong principle, mistaking the facts, taking into account irrelevant matters, or reaching an unreasonable or plainly unjust decision. Step 2: only if error is established does the Court set aside the order and conduct a fresh (de novo) hearing (s 18A(6)). → Procedure: notice of appeal setting out the grounds must be served on the respondent and any bail guarantor (s 18A(2)–(3)), no later than one month after bail is granted unless the Supreme Court grants leave (s 18A(4)). → If the respondent is absent: where bail is revoked or varied on appeal in the respondent's absence, the Court issues a warrant for their apprehension (s 18A(7)). → Costs: no costs are allowed for either side on the hearing and determination of the appeal (s 18A(10)). → Overarching principle: s 1B(1AA) (community safety of overarching importance, 26 March 2025) applies to all bail determinations, including reviews by a higher court. |
STEP 1 Correction of error (House v The King)
Has the DPP established that the primary judge's discretion miscarried? The DPP bears the onus. The primary decision-maker must be shown to have: (1) acted on a wrong principle; (2) allowed extraneous or irrelevant matters to guide them; (3) mistaken the facts; (4) failed to take into account a mandatory consideration; or (5) reached a decision that is unreasonable or plainly unjust on its face. → Nature of a bail decision (Zayneh): technically a "duty to be exercised if a particular state of satisfaction is reached" rather than a pure discretion — but the predictive, forward-looking assessment of "unacceptable risk" still demands appellate restraint under House v The King. → If no error established: the appeal must be dismissed immediately — the court does not reach the merits.
STEP 2 Rehearing de novo (s 18A(6))
→ Only if a Step 1 error is established: the Supreme Court sets aside the original order, the discretion is re-opened, and the court conducts a completely fresh (de novo) hearing under s 18A(6) to determine bail on its merits.
The 'reasonably open' (Wednesbury) standard is rejected
In Re Molinaro VSC 624, Weinberg J doubted the "reasonably open" test — requiring the DPP to prove a decision was not "reasonably open" was "almost akin to having to establish Wednesbury unreasonableness" and set the bar for error correction too high. The Court of Appeal has since settled that the House v The King standard governs Step 1.
Leading s 18A decisions¶
| Case | Facts | Step 1 error? | Outcome | Decisive factors & principles |
|---|---|---|---|---|
| Re Martinow [2019] VSC 118 | Respondent charged with aggravated home invasion and other violent offences — Schedule 1 (reverse onus: exceptional circumstances). Magistrate granted bail (18 Jan 2019) but failed to state any reasons, breaching the mandatory recording requirement in s 12A. On appeal, the material showed the respondent was a high-ranking member of the FINKS OMCG ("one percenter" tattoo; official colours on the FINKS public Facebook page); complainants and civilian witnesses expressed profound, explicit fear of gang reprisals. | Yes — failure to state reasons (s 12A) | Bail revoked | Failure to give reasons on the exceptional circumstances test is an automatic material error of law that re-opens the discretion for a de novo rehearing. On rehearing, Martinow failed to discharge his onus on exceptional circumstances. In any event unacceptable risk: high-ranking OMCG status gave resources to abscond, and extreme complainant fear made witness interference / obstruction unmanageable by conditions. |
| DPP (Cth) v Sa'adat Khan [2021] VSC 224 | Serious Commonwealth terrorist offending. After a primary grant of bail the Cth DPP appealed, relying on post-offending intelligence that the respondent continued to actively adhere to extreme, violent terrorist ideologies on remand. Key item: a letter to an associate ("S") stating she would "come as a birdy right behind you, don't you worry" — said to be an implicit threat and evidence of willingness to subvert bail conditions. | Yes — evaluation of risk miscarried | Bail revoked | Post-offending conduct — ongoing adherence to extremist ideology and coded, subversive communications (the "birdy" letter) — is highly probative of a lack of compliance. Coded threats and active subversion show the accused does not feel constrained by court-ordered conditions, rendering the risk of reoffending / endangering the public unmanageable in the community. Risk assessed as a forward-looking predictive exercise. |
| DPP (Cth) v Carrick (a pseudonym) [2022] VSC 696 | Cth DPP appeal under s 18A against a decision of a lower court admitting a child to bail. | No | Appeal dismissed (bail maintained) | Appellate restraint: at Step 1 the court must "hesitate before interfering with the primary judge's decision". Restraint is heightened where the decision was made by a highly specialist court — here the Children's Court of Victoria, uniquely placed to assess the developmental and therapeutic needs of child applicants. |
Part I — Offences under the Bail Act¶
| Offence | Detail | Provision |
|---|---|---|
| Failure to answer bail | Failing to surrender into custody without reasonable cause — the burden of proof rests on the accused | s 30 |
| Committing an indictable offence while on bail | An accused on bail must not commit an indictable offence while on bail. Reintroduced by the Bail Amendment Act 2025 (Vic); applies to offences committed on or after 26 March 2025. Now load-bearing: a s 30B charge is criterion (1) of the s 4AA(4A) repeat-indictable uplift | s 30B |
| Indemnifying a bail guarantor | Agreeing to indemnify a bail guarantor against liability incurred as guarantor | s 31 |
Part J — Authorities at a glance¶
| Authority | Proposition |
|---|---|
| Re Gloury-Hyde VSC 393 | Exceptional circumstances must take the case "out of the normal" / "out of the ordinary"; absence of unacceptable risk cannot alone establish them |
| Re Granata VSC 879 | "Exceptional" is a flexible English word, not an arithmetic measure; need not be unique or unprecedented |
| Roberts v The Queen VSCA 28 | Ultimate question is whether continued pre-trial detention is unjust; weight of factors is for the decision maker |
| Re Cartledge (Bail Application) | "Out of the ordinary" formulation |
| Re CT | Exceptional circumstances may arise from a combination of factors individually falling short |
| Re Cassar | Establishing exceptional circumstances does not guarantee bail — step 2 still applies |
| Re Sipser | Same factual variables inform both stages, but the inquiries remain conceptually distinct |
| HA (a pseudonym) v The Queen VSCA 64 | Delay / remand exceeding likely sentence is of particular significance; Aboriginal incarceration rates not to be compounded without good reason |
| Re Barda VSC 716 | Delay and remand exceeding likely sentence — exceptional circumstances and compelling reason |
| Turner v Lill (No 2) VSCA 255 | Severe weakness of the prosecution case, foredoomed to fail |
| Re Nicholson VSC 221 | Significant medical conditions lacking adequate treatment in custody |
| Re O'Shea | Exceptional family hardship / sole caring responsibilities, in combination |
| Re Dickenson | Unacceptably adverse impact of incarceration on mental health |
| Re Ceylan VSC 361 | Compelling reason = "forceful, and therefore convincing" reason; "difficult to resist"; less difficult than exceptional; weakness of Crown case; community treatment prospects |
| Re Troon | Youth, special vulnerability, lack of criminal history as compelling reason |
| Re Alsowafi; Re Gaylor | Bail support, stable accommodation, highly regarded residential rehabilitation as compelling reason |
| Hall v Pangemanan | Unacceptable risk is not merely any risk; low risk of serious offending may suffice, high risk of minor offending may not; unfitness to plead and indefinite remand |
| Re Boland VSC 85 | Relative assessment — likelihood weighed against magnitude of consequences; CISP supports |
| Re LD | The applicant bears no burden with respect to unacceptable risk |
| Re PJ | For a child, unacceptable risk must be shown "with cogent evidence to a high degree" |
| Ali El Nasher v DPP / Zayneh v R | No single factor is determinative; informed, intuitive evaluation of interacting circumstances |
| Danny Zayneh v R | Even inordinate delay is not independently determinative |
| Re Terei VSC 294 | Aboriginality is a "weighty factor", at the forefront of s 4E reasoning; no more lenient test; tipping point on risk |
| Re McLaughlin | s 3A factors in the context of systemic incarceration may satisfy the threshold tests, especially combined with personal circumstances |
| Re Campbell VSC 591 | Aboriginality and over-incarceration harm as a tipping point; CISP wraparound supports |
| Re TQ | Bugmy principles available to argue a non-custodial ultimate sentence within surrounding circumstances |
| Re Thorpe VSC 414 | s 3A(1)(a)–© must be considered regardless of whether evidence is put before the decision maker (s 3A(3)) |
| Re GG VSC 12 | Former s 3A "cultural background" wording (now displaced); ss 3A and 3B read together for Aboriginal children |
| Re JO VSC 438 | A combination falling short for an adult may justify bail for a child; youth given significant weight |
| Re SL VSC 571 | Remand no longer "last resort" but minimum intervention may be remand; s 1B(1AA) read through s 3B(1)(h); affirms Re JO |
| Re Johnson | "Special vulnerability" is to be interpreted broadly |
| Whitten v The King | Neuro-developmental disorder / complex trauma without monitoring may heighten risk |
| Palmer v Australian Capital Territory (No 2) | Psychiatric impacts of custodial isolation and overcrowding (with the Bugmy Bar Book) |
| Boulton; Clements; Fitzgerald | Imprisonment seriously detrimental; authorities inadequately resourced to rehabilitate serious psychological or behavioural problems |
| Robinson v The Queen VSCA 161; Re Hamilton-Green VSC 484 | Residential rehabilitation as a structural substitute for remand, neutralising the drivers of offending |
| YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs HCA 40 | Automatic curfew / electronic monitoring prima facie punitive — conditions must be tethered and tailored to risk |
| House v The King | Appellate restraint over a discretionary, interlocutory bail decision |
| FT (a pseudonym) v The King | s 18A is an appeal in the strict sense — error must be established first |
| Worboyes v The Queen VSCA 169; Zayneh v The King VSCA 311 | House principles applied to bail review |
| DPP (Vic) v Roberts (No 2) | Applications beyond the s 18AA(1)(aa) allowance require new facts or circumstances |
Currency watch — the amendment sequence¶
• 25 March 2024 — Bail Amendment Act 2023 (Vic): double uplift abolished and the offence of committing an indictable offence while on bail repealed; s 3A repealed and substituted (displacing the "cultural background" wording applied in Re GG); s 3AAA(1)(aa) inserted (remand exceeding likely sentence); "surety" replaced by "bail guarantee" / "bail guarantor"; s 18AA(1)(aa) first-or-second-application gateway inserted.
• 11 Sept 2024 – 30 Sept 2025 — Youth Justice Act 2024 (Vic) commenced in stages; inserted s 3AAA(1)(ia) (Part 2A electronic monitoring availability).
• 22 April 2025 — Part 2A electronic monitoring trial for children aged 14–17 commenced (s 17D).
• 26 March 2025 — Bail Amendment Act 2025 (Vic): s 1B(1AA) — community safety of "overarching importance" (affects weighting, not the threshold tests: Re SL); s 30B reintroduced, applying to offences committed on or after this date.
• 26 August 2025 — Bail Amendment Act 2025 (Vic): armed robbery, aggravated burglary, home invasion and carjacking moved Sch 2 → Sch 1 (now exceptional circumstances).
• 30 September 2025 — Bail Further Amendment Act 2025 (Vic): s 4F "high degree of probability" commenced; minimum age of criminal responsibility raised to 12 (doli incapax codified for 12–13 year olds); s 3AAA expanded as to personal circumstances and vulnerabilities; electronic monitoring confined to the specific statutory pathways.
• 31 March 2026 — Bail Further Amendment Act 2025 (Vic): s 4AA(4A) repeat-indictable uplift now in force; operates via the s 30B charge + Schedule 4 / Schedule 5 carve-outs (Gate 1B), with s 4AA(4D) governing multiple later offences.