Bail Applications

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:

1. On their own undertaking without any other condition; or
2. On their own undertaking with conduct conditions; or
3. 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.

These include:

– the strength of the case against you,
– issues with the investigation,
– undue delay in bringing the matter to trial,
– strong support in the community,
– good prospects of rehabilitation,
– the availability of residential rehabilitation, and
– a monetary surety.

This depends on the facts and circumstances of each person applying for bail and may include:

– a stable address,
– their suitability for a bail support program,
– a weak prosecution case or,
– the likelihood that time spent on remand would exceed the sentence imposed.

Common bail conditions include:

• Static Address – where you must reside at a particular address
• Curfew – where you must be at your place of residence between certain periods of the evening (i.e. 9pm to 7am)
• Reporting – reporting to a police officer daily or weekly
• Non-Association – not to have contact with a prosecution witness or co-accused
• Surety – where a sum of money is provided to the court as a security so that you appear at court; this may be forfeited if you do not attend court on the next occasion