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If an accused person is on bail for a “serious offence” as defined by the Bail Act and it is alleged that the accused person has committed another “serious offence” whilst they were on bail for the first “serious offence”: they become what is known as a “Schedule 2 Offender”. A Schedule 2 offender is required to demonstrate “exceptional circumstances” in order to be released on bail. There is a presumption against granting bail for Schedule 2 offender. It is therefore vital to have a criminal defence lawyer from one of Perth’s top criminal law firms to guide you through the process. What is considered by the court to be exceptional circumstances will vary from case to case and this can make it difficult for someone without formal legal training and experience to get it right.
Whilst “exceptional circumstances” is not defined by the Bail Act: it is a high legal standard where the onus is upon the accused. Demonstrating exceptional circumstances can be complicated to understand and difficult to prove. There is no defined list of exceptional circumstances. Loss of employment and financial hardship as a result of being kept in custody will usually not be regarded as exceptional circumstances. Poor health of the accused or someone who is dependent upon the accused has been held to be exceptional circumstances in the past. However, the circumstances will vary from case to case and it is necessary to have the right medical evidence before the court.
Under the Bail Act 1982, “serious offence” is defined as one or more of the following:
| The Criminal Code | |
| s. 221E(1) | Participating in activities of criminal organisation |
| s. 221F(1) | Instructing commission of offence for benefit of criminal organisation |
| s. 279 | Murder |
| s. 280 | Manslaughter |
| s. 281 | Unlawful assault causing death |
| s. 283 | Attempt to murder |
| s. 292 | Disabling in order to commit indictable offence |
| s. 294 | Acts intended to cause grievous bodily harm or to resist or prevent arrest |
| s. 297 | Grievous bodily harm |
| s. 301 | Wounding and similar acts |
| s. 304(2) | Acts or omissions, with intent to harm, causing bodily harm or danger |
| s. 317 | Assault occasioning bodily harm |
| s. 317A(a) | Assault with intent to commit or facilitate a crime |
| s. 317A(b) | Assault with intent to do grievous bodily harm |
| s. 318 | Serious assaults |
| s. 323 | Indecent assault |
| s. 324 | Aggravated indecent assault |
| s. 325 | Sexual penetration without consent |
| s. 326 | Aggravated sexual penetration without consent |
| s. 331B | Sexual servitude |
| s. 331C | Conducting business involving sexual servitude |
| s. 331D | Deceptive recruiting for commercial sexual services |
| s. 332 | Kidnapping |
| s. 333 | Deprivation of liberty |
| s. 338E | Stalking |
| s. 378 | Stealing a motor vehicle |
| s. 392 | Robbery |
| s. 393 | Assault with intent to rob |
| s. 401 | Burglary |
| s. 444 | Criminal damage, if the property is destroyed or damaged by fire |
| Bush Fires Act 1954 | |
| s. 32 | Wilfully lighting a fire or causing a fire to be lit under such circumstances as to be likely to injure or damage a person or property |
| Criminal Organisations Control Act 2012 | |
| s. 99(1) | Association by controlled person with another controlled person |
| s. 99(3) | Association by controlled person with another controlled person on 3 or more occasions within 3 month period |
| s. 102 | Offence for controlled person to get funds to, from or for declared criminal organisation |
| s. 103 | Other contravention of interim control order or control order |
| s. 106 | Recruiting members for declared criminal organisation |
| s. 107(2) | Permitting premises to be habitually used as place of resort by members of declared criminal organisation |
| s. 107(3) | Being knowingly concerned in the management of premises habitually used as place of resort by members of declared criminal organisation |
| Misuse of Drugs Act 1981 | |
| s. 6(1) | Offences concerned with prohibited drugs generally |
| s. 7(1) | Offences concerned with prohibited plants generally |
| s. 14(1) | Possessing a quantity of a category 1 item or a category 2 item in circumstances where the life, health or safety of a child under 16 years of age was endangered, or bodily harm (as defined in The Criminal Code section 1(1) and (4)) was caused to such a child, by the acts constituting the offence |
| s. 33(1)(a) | Attempting to commit an offence under section 6(1) or 7(1) |
| s. 33(2)(a) | Conspiracy to commit an offence under s. 6(1) or 7(1) |
| Restraining Orders Act 1997 | |
| s. 61(1) | Breach of a violence restraining order |
| s. 61(2a) | Breach of a police order |
| s. 86(2) | Breach of a Part VII order under the Justices Act 1902 3 — (a) that under section 86 of the Restraining Orders Act 1997 is taken to be a misconduct restraining order under that Act; and (b) that shows on the face of the order that the causing or threatening of personal injury by the accused was a ground for the making of the order. |
| Road Traffic Act 1974 | |
| s. 59 | Dangerous driving causing death, injury, etc. |
| s. 59A | Dangerous driving causing bodily harm |
Our team of criminal lawyers and barristers based in the Perth CBD are criminal law specialists and experienced in providing sound legal advice to clients. If you’re looking for a criminal defence lawyer in Perth to assist with a bail application give us a call today on 1300 274 692 or fill out an online enquiry and one of our experienced criminal lawyers will be happy to assist you. Our firm of criminal lawyers and barristers is one of the top firms in Perth providing representation on all types of criminal law matters including bail applications, drug cases and sexual offences.
Recent legislative reforms in Western Australia, effective from 18 December 2024, have expanded the use of electronic monitoring for accused persons on bail for family and domestic violence offences.
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We have experience prosecuting and defending in a broad range of criminal matters including:
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