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Criminal Law Blog WA

Schedule 2 Bail Applications

Schedule 2 of the Bail Act 1982 contains a list of serious offences. If you are arrested for allegedly committing a Schedule 2 serious offence whilst on bail for another serious offence,  Schedule 1 Part C clause 3A of the Bail Act 1982 Bail Act states that bail should be refused unless there are exceptional circumstances. A person in this situation is commonly referred to as a “Schedule 2 offender”.  Schedule 2 offences include Murder, Treason, Offences under the Misuse of Drugs Act 1981.

Onus of proof is on the offender

Reoffending of any kind, whilst on bail is always a serious matter and clearly the intention is to make it more difficult to be released on bail for a second time. The onus is on the accused to prove exceptional circumstances why you should not remain in custody. This is a heavy burden. The consequence of becoming a schedule 2 offender is usually that you remain in custody up until the conlcusion of the matter.

It is however important to note that this difficult burden does not do away with the right to apply for bail. If you find yourself to be the applicant in a schedule 2 bail apllication, seek legal advice. It is always a serious matter and getting bail is very difficult.

What constitutes “exceptional circumstances”?

The term “exceptional circumstances” is not defined in the Bail Act. The court has a wide discretion as to what constitutes exceptional circumstances. Some define it as unusual or uncommon circumstances surrounding your case. It might also be the interaction of factors that are not in themselves exceptional, but because of the interaction, it might establish exceptional circumstances. At the end of the day, what amounts to exceptional circumstances will depend significantly on the details of your particular case and circumstances. It means something out of the ordinary. Clearly the presumption is against granting of bail, unless your circumstances are out of the ordinary; and you have to prove that to the court.

It might be useful to look at a few examples from previous case law to explain how the court will look at the different factors. The following were considered previously:

  • The offender’s age or health, in combination with other factors might render it out of the ordinary, for example if there is a need for rehabilitation or treatment and the treatment will not be available whilst in custody.
  • The duration of the trial – Delay in certain circumstances has been regarded as a proper basis for trial, such as when the delay until trial may lead to an accused person being remanded for a period of 18 months or more. It would also be highly relevant if the length of delay would amount to or be greater than the term of imprisonment that would likely be imposed following conviction (assuming that the accused was in fact convicted).
  • Financial hardship might be considered as an exceptional circumstance, if combined with other factors, for example the age of your dependents, your living situation, educational needs etc.
  • Very stringent bail conditions, in combination with other factors might be considered exceptional circumstances justifying granting of bail.

Each case will turn on its own facts. Each factor must be given its own weight in the context of your particular case. What is exceptional for one case might not be an exceptional circumstance in another case.

The Act provided the concept of “exceptional circumstances” , and exceptional reasons” but does not define it. It is the duty of the court to apply its discretion in deciding on whether the offender has succeeded in establishing exceptional circumstances why he should not remain in custody.

Get legal assistance

A schedule 2 Bail application and proving exceptional circumstances can be difficult and complicated. If you fail to succeed in your application you might remain in custody for a very long time. You will need to seek legal advice and obtain the services of a lawyer to assist you in the application.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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