26.3.1.6 – Two-step process for bail determination

Prior to the 2018 BA amendments, case law in Victoria diverged on whether the former “show cause” test was a one-step or two-step process (for an overview of the case law see former Magistrate Peter Power, Research Materials, 9. Criminal Division: Custody & Bail, pages 9.10-9.11). The divergence stemmed from conflicting case law about whether (1) the accused had to show cause why their detention was not justified and (2) if so, bail must be granted unless the prosecution established there was an unacceptable risk that the accused may commit a prohibited offence if released on bail.

From 1 July 2018, the BA has been amended to make it clear that a two-step test applies in bail determinations for exceptional circumstances and show compelling reason offences (ss4AA, 4A, 4C, 4D, 4E).

Section 3D provides illustrative flow charts of the decision-making processes:

The tests contained in the new sections follow the process outlined in the flow charts; namely:

See Also

26.3.1 - Presumption of bail and exceptions

26.3.1.1 - Terrorism risk or record

26.3.1.2 - Exceptional circumstances

26.3.1.3 - "Show compelling reason"

26.3.1.4 - Unacceptable risk

26.3.1.5 - Surrounding circumstances