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).
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.
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).
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.
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.
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.