Bail is now becoming a highly complex area of the criminal law. There have been many changes in recent years to the legislation that affect bail applications.
What is bail?
Bail is the release of an accused person from custody on their signed undertaking that they will appear at court to answer their charges. A bail undertaking can include any number of conditions that must be complied with by the accused person, such as a reporting condition, a curfew, or a surety.
The Bail Act 1977 provides the legislative framework used to make decisions on whether an accused person should be granted bail.
For more information about bail applications, including the bail hearing process and bail being granted or refused, please see our frequently asked bail questions.
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Changes to the Bail Act
Many changes in recent years to the legislation have affected bail applications.
For example, when a lawyer represents a client and a Magistrate or Judge refuses bail, we can only make a further application if new facts and circumstances arise after the first application.
“… the new facts or circumstances must be of such a nature that they are relevant to bail and justify a conclusion by the Court that reconsideration of the [previous] refusal of bail is required …” Mokbel v DPP
The same Magistrate or Judge will almost always hear the new bail application.
Applying for Bail
If a police officer has placed you in custody and you apply for bail, it is their legal obligation to consider your application. The offence you are charged with will determine whether a police officer can grant your bail or whether your bail application hearing will need to go to court.
In Victoria, if a hearing cannot take place within 24 hours of your arrest and there are no legal grounds to refuse the application (‘compelling reasons’ or ‘exceptional circumstances’), bail must be granted. Or, police officers can arrange for a bail justice to review your application.
Slades and Parsons are available 24/7 for help through this process and can further assist in bail applications through the courts.
Case Study - Bail Application
Slades and Parsons solicitor Ms. Dubroja acted for a client who had been charged with a number of offences, including aggravated burglary, drug and dishonesty offences. The offending breached a Community Correction Order.
Ms Dubroja arranged community and court supports, including participation in a court-supported bail program, a suitable address, strong family support and counselling support. Our office submitted that strict bail conditions would reduce the risk of our client reoffending or failing to appear.
Bail was initially refused
The Magistrate agreed with all submissions but refused our client bail due to the seriousness of the offending and previous convictions for breaching bail and Community Correction Orders.
Our client was remanded in custody.
Bail was then granted
Ms Dubroja discussed further options with the client. Ms Dubroja organised for our client to undergo an in-custody assessment for a rehabilitation facility. When the client was found suitable for the rehabilitation program, Ms Dubroja negotiated with Corrections to allow our client to continue on the order so that the programs completed at the facility are credited to the Corrections Order.
On the basis of this assessment, new facts and circumstances were established and a further application for bail was made.
The Prosecution would not consent to bail and submitted the risk to the community was still too high. Ms Dubroja submitted that new facts and circumstances (the additional support of a rehabilitation centre) reduced the risk to an acceptable level. The Court granted our client Bail.
Slades & Parsons: Expert assistance with bail applications
With the increasing complexity of bail applications in the criminal law, Slades and Parsons Lawyers offers expert assistance in all bail matters.
Slades and Parsons Lawyers are experienced in preparing and conducting bail applications in all courts and appear regularly on behalf of our clients. We carefully analyse our client’s situation and the prosecution case. Slades & Parsons work closely with organisations that can provide support or treatment and enhance your chance of a successful bail application.
Our lawyers are happy to discuss any questions you may have about applying for bail. We will make a further application for bail if it has been refused.
Slades & Parsons are available to take your call 24 hours a day.
We can provide more information on bail applications and help in navigating the legal process.
Bail Applications – Frequently Asked Questions
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Bail is the release of an accused person from custody on their signed undertaking that they will appear at court to answer their charges. A bail undertaking can include any number of conditions that must be complied with by the accused person, such as a reporting condition, a curfew, or a surety.
It is a criminal offence if you:
- Fail to appear at court in accordance with your undertaking,
- Fail to comply with a bail condition, or
- Commit another offence while on bail.
Further, this may give rise to being re-arrested and remanded in custody. The law in Victoria relating to bail is found in the Bail Act 1977 (Vic).
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The bail decision maker must engage in a two-step process when determining whether to grant bail.
In the first step, the accused must demonstrate either ‘compelling reasons’ or ‘exceptional circumstances’ as to why they should be granted bail. These thresholds are dictated by the seriousness of the alleged offence. The second step relates to ‘unacceptable risk’ factors which fall on the prosecution to demonstrate. An example of risk factors are ‘committing further offences on bail’ or ‘failing to appear on bail’ or ‘interfering with witnesses’ to name a few.
In a bail application, the informant may give evidence about the circumstances of the alleged offence, outline the accused’s prior criminal history and reasons why they are an unacceptable risk. The accused may then cross-examine the informant about the police investigation and then make submissions as to why they should be granted bail.
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A person can be refused bail if a bail decision maker is not satisfied that the accused has shown ‘compelling reasons’ or ‘exceptional circumstances.’ Further, bail can be refused if the bail decision maker is not satisfied that the risk factors asserted by the Prosecution cannot be reduced to an acceptable level through the imposition of bail conditions. There are various ‘surrounding circumstances’ that the bail decision maker must take into account which are outlined in section 3AAA of the Bail Act 1977 (Vic).
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If bail is granted, the accused person must enter into a written undertaking to surrender into custody at the time and place of the hearing or trial specified in the undertaking.
An accused person may be released:
- On their own undertaking without any other condition; or
- On their own undertaking with conduct conditions; or
- With a surety or sureties for a specified amount or a deposit of money of a specified amount, with or without conduct conditions.
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If a surety is offered by a representative of the accused, the quantum is usually determined by the Bail decision maker. A surety can come in the form of a Bank Cheque or even equity in a property.
The surety cannot be the accused person, but a third party. This person should obtain independent legal advice prior to entering into this arrangement. The consequences of the accused failing to comply with their bail undertaking may result in the surety being forfeited.
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If the accused fails to appear in accordance with the conditions of bail, the surety is liable to forfeit the deposit of money. However, a surety has rights to apply for an order varying or rescinding the forfeiture.
The surety can make an application to the police or the court for a discharge of liability at any time. When this happens, the accused is brought before the court and must find another surety if they are to be released again on bail.
In all other circumstances, when a person has been admitted to bail with a surety, the obligations of the surety will continue until the finalisation of the proceedings.
