Bail Applications (Vic)
When a person in Victoria is charged with criminal offences, they may be granted bail by the police or remanded in custody. If they are remanded in custody, they must be brought to court at the first reasonable opportunity so that they can make a bail application if they wish to do so. If the person is an adult, this will occur at the Magistrates Court. If they are a juvenile, it will occur at the Children’s Court.
What is bail?
Bail is the conditional release of a person who is subject to criminal proceedings that have not yet been finalised. Bail can be granted at any stage in criminal proceedings, including when a person is first charged, after they have entered a plea or after they have been found guilty but prior to sentencing.
When a person is granted bail, they must promise to the court that they will return to court when required to do so and that they will abide by any other conditions that are attached to their bail. The conditions that are attached to a person’s bail will depend on what the person is charged with and what risk factors the court considers exist.
If a person is facing serious charges and/or has an extensive criminal history, they are more likely to have difficulty persuading the court to grant them bail. If they are granted bail, they are more likely to have stringent bail conditions put in place. These may include reporting to the police and surrendering their passport until the matter is finalised.
If a person is facing criminal charged that are alleged to be related to the use of alcohol or drugs, they may be granted bail subject to a condition that they abstain from alcohol or drugs and may be required to submit to alcohol and drug testing.
How does the court decide a bail application?
When deciding whether to grant a defendant bail or not, the court must decide whether there is an unacceptable risk that the person will fail to attend court, that they will commit offences while on bail, interfere with witnesses or endanger the community.
In assessing this, the court will consider the following:
- What the charges are and how strong the case is against the person is;
- Their criminal history (if any);
- Their bail history (if any) including whether they have breached bail in the past;
- Whether they are considered a ‘flight risk’ ie. Whether they are likely to try to leave the jurisdiction without finalising the charges against them;
- The penalty that is likely to be imposed if they are found guilty;
- Whether they have community obligations such as being employed or being responsible for children and how their imprisonment would impact other people;
- Whether they pose an unacceptable risk to the community if granted bail;
While for some offences, there is a presumption that an accused should be granted bail, for others there is a presumption that they should remain in custody unless there are exceptional circumstances. For other offences, the person seeking bail must ‘show cause’ why their continued detention is not justified.
What happens at a bail application?
When a person applies for bail in the Magistrates Court, they or their solicitor will state that the defendant is applying for bail. The magistrate will ask the prosecutor what the prosecution’s attitude to bail is. The prosecution may oppose bail or consent to bail. If the prosecution consents to bail, it is very likely that bail will be granted. However, it does not guarantee that the magistrate will grant bail as the court may have concerns about releasing the person even if the prosecution does not.
If the prosecution opposes bail, it will make submissions and may call evidence about the circumstances of the alleged offence and the defendant’s criminal record, as well as what the police’s concerns are about granting bail. This may include the risk of re-offending, the risk of fleeing the jurisdiction, or the risk of interfering with witnesses.
The defence will then have an opportunity to make submissions, cross-examine the prosecution’s witnesses and call its own evidence. It may also tender documents such as character references and evidence of employment. The defence will make submissions on whether there are any unacceptable risks and if so what conditions can be imposed to mitigate those risks. These submissions may include comments on the strength of the prosecution case, the nature and seriousness of the offence as well as the defendant’s character, home environment, background and criminal history.
When appropriate, the defence may indicate to the court that someone (for example, the defendant’s employer) is willing to deposit cash or security to secure the defendant’s bail. This money would be forfeited if the defendant breaches their bail.
After considering all of the material before the court, the magistrate will make a bail determination. If the defendant is granted bail, they will have to sign their bail agreement. If they are refused bail, they will be remanded in custody until the matter is finalised or until a court grants them bail.
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