What is Bail in Victoria?
Bail is the process that allows a person to be released back into the Victorian community after they are arrested and charged with a criminal offence. Bail application laws and rights in Victoria are legislated under the Bail Act 1977 (Vic).
If you are charged with a minor criminal offence, the police may grant you bail immediately. In this case, you will be issued a summons and required to attend court on a set hearing date.
However, if you are charged with a serious criminal offence, the police may choose to hold you in custody. If you wish to make a bail application, you will be taken to Court as soon as logistically possible to do so.
Should you be granted bail, you will be allowed to re-enter the Victorian community until the date of your next Court hearing. However, you must abide by a set of Court imposed conditions whilst on bail. If you break these conditions, you may be penalised and face further criminal charges.
If you choose not to make a bail application in Victoria, or your application is refused by the Court, you will be remanded in custody until your matter is finalised. Depending on which Court your matter is to be heard in, custody may last anywhere from a day to a matter of months or even years. However, in certain circumstances, you may make an application for bail at a later time or appeal your original bail decision.
Please contact Sher Criminal Lawyers immediately if you or a loved one wishes to apply for bail. Our specialist lawyers are extensively experienced in bail matters and appear frequently before the Magistrates Courts in Melbourne and regional Victoria. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
The Bail Application Procedure in Victoria
The bail application procedure in Victoria usually works as follows:
Bail can be granted at any stage of your criminal proceeding.
The police may release you immediately after arrest or you can make a bail application at a later time when you are brought before the Court.
You are arrested for committing a crime. The police officer, who you are in the custody of, must consider whether they should grant you bail.
- If you are charged with committing a minor or summary criminal offence, you will likely be granted bail immediately. You will receive a summons with a date and time that you must attend court. Some other conditions may also be imposed.
- If you are accused of committing a serious criminal offence, the police will likely remand you in custody. The police can refuse to grant you bail if it is practicable to bring you before a court within 24 hours of your arrest. Even if they can’t bring you before a court in that time, the police can still refuse to grant bail if there are legal grounds for doing so (e.g. there is an unacceptable risk that you will re-offend if released from custody).
When you make your bail application before the Court:
- The prosecution will try to prove that you pose an “unacceptable risk” to the community should you be released from custody. The prosecution’s evidence might include information about the seriousness of your crime and your criminal record.
- Your lawyer will have to prove to the Court why you should be granted bail. If you can prove that there are “compelling reasons” or “exceptional circumstances” as to why your detention in custody is not justified, these will be considered by the bail decision-maker.
The Court or bail justice will weigh up many complex factors in deciding whether to grant or refuse bail.
- Your bail application will be approved if your lawyer can convince the Court or bail justice that there are “compelling reasons” or “exceptional circumstances” as to why your detention in custody is not justified.
- Your bail application must be refused if the Court concludes that you pose an “unacceptable risk”.
Your next course of action will depend on the outcome of your bail application:
- If you are granted bail, you will sign a written bail undertaking. This document specifies your bail conditions and your next court date. You will then be released from custody, provided you comply with the terms and conditions set.
- If you are refused bail, you will be kept in custody until the day of your trial. However, in certain circumstances, you can make a further application for bail.
If you breach the conditions of your bail or fail to appear for your court date, you will be committing an offence. Bail offences can carry a penalty of 3-12 months imprisonment.
What Does the Court Consider During a Bail Application in Victoria?
Unacceptable Risk
You may be refused bail if another party opposes your bail application and/or the prosecution can prove that you pose an “unacceptable risk” of breaching bail conditions. The Court might be satisfied that you pose an unacceptable risk if, when you were on bail, there’s a chance that you would:
- Endanger the safety or welfare of any person; or
- Commit an offence while on bail; or
- Interfere with a witness; or
- Obstruct the course of justice in any matter; or
- Fail to surrender into custody as per your bail conditions.
Compelling Reasons and Exceptional Circumstances
The accused may be able to prove that detention in custody is not justified if they can demonstrate “compelling reasons” or “exceptional circumstances” to the Court.
The onus is on the accused to prove that there are “compelling reasons” as to why their detention in custody is not justified. “Compelling reasons” may include but are not limited to:
- A clean criminal record;
- Compliance with bail conditions in previous matters;
- A minor penalty is likely to be imposed;
- Stable accommodation and living situation;
- Stable employment;
- Participation in Court supported bail programs;
- Participation in rehabilitation, treatment or counselling programs;
- Surety (forfeiting property or money if you breach your bail conditions);
- Supervision by family or authorities;
- A weak police case or lack of evidence;
- Vulnerabilities of the accused.
Depending on the seriousness of the criminal charge, the accused might also be able to prove that there are “exceptional circumstances” as to why detention in custody is not justified. Examples of “exceptional circumstances” might include, but are not limited to:
- Serious illness;
- Excessive (inordinate) delays in criminal proceedings;
- Forgiveness by the Victim;
- Exceptional family hardship; or
- Assisting authorities in investigations.
Making a Further Bail Application in Victoria
If the Victorian Courts refuse your initial bail application, you can oppose their decision and make a second application at a later date. However, you can only do so in certain circumstances:
- You were not legally represented at the first bail hearing; or
- New facts and circumstances have arisen since the first bail application.
Bail Conditions and Offences in Victoria
Bail Conditions
If you are released on bail, you will be subject to Court imposed bail conditions. Variations on bail conditions can include but are not limited to:
- Reporting periodically to a police station;
- Staying away from certain areas;
- Not being allowed to associate with certain people;
- Having to reside at a specified address;
- A nightly curfew;
- Surrendering your passport; and
- A ban from leaving the state and/or country.
Before you are released from custody, it is also a common requirement for the accused to:
- Make a money deposit (as security for paying any penalty that the Court may later impose); or
- Pay surety of a particular value (money or property that you will forfeit if you breach your bail conditions).
Offences Related to Breaching Bail Conditions
Breaching your bail conditions is a criminal offence under the Bail Act Victoria 1997 (Vic). Depending on which conditions you breach, you might be charged with any of the following offences:
- Fail to Answer Bail (s30) – maximum penalty of 2 years imprisonment.
- Contravene Certain Conduct Conditions (s30A) – maximum penalty of 30 units or 3 months imprisonment.
- Commit Indictable Offence Whilst on Bail (s30B) – maximum penalty of 30 units or 3 months imprisonment.
- Indemnifying Surety (s31) – maximum penalty of 15 units or 3 months imprisonment.
In Victoria, the value of one penalty unit is around $165.
How to Apply for Bail or a Variation of Bail Conditions in Victoria
Bail applications are highly complex. The Court will only grant you bail if the bail justice is satisfied that you do not pose an ‘unacceptable risk’ to the community. You will likely have to prove that you there are “exceptional circumstances” or “compelling reasons” as to why you shouldn’t remain in custody.
Proving these points requires extensive legal experience and expert knowledge in regard to the common law, relevant legislation and court procedure. If you or a loved one wishes to make a bail application, it is paramount that you obtain expert legal advice and representation.
Please contact Sher Criminal Lawyers immediately so that we can help you seek bail and protect your legal interests. Our specialist lawyers are extensively experienced in bail matters and appear frequently before the Magistrates’ Courts in Melbourne and regional Victoria. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
We can also help you to make a further application for bail or defend criminal charges related to breaching bail conditions.
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