How a Court Determines Whether to Grant Bail - Armstrong Legal Melbourne

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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

How a Court Determines Whether to Grant Bail


The process for determining whether to grant bail depends on what offence you are charged with. The Bail Act 1977 divides offences into three categories:

  • Offences with a presumption of an entitlement to bail
  • Show Cause Offences
  • Offences for which bail must be refused unless there are exceptional circumstances

There is a presumption that an accused person is entitled to bail for all offences that do not fall into the second and third categories.

Regardless of the offence, the court must consider whether there is an unacceptable risk that the person would:

  • fail to answer their bail by attending court;
  • commit an offence whilst on bail;
  • endanger the safety or welfare of members of the public;
  • interfere with witnesses or otherwise obstruct the course of justice.

Criteria for Assessing “Unacceptable Risk”

In determining whether or not there is an unacceptable risk, the court will consider the:

  • nature and seriousness of the alleged offence;
  • accused person’s character, criminal history, associations, home environment and background;
  • history of any previous grants of bail to the accused person;
  • strength of the prosecution evidence;
  • attitude, if expressed to the court, of the alleged victim to the grant of bail.

If there is an unacceptable risk the court must consider whether there are conditions that may be imposed to address the circumstances which create an unacceptable risk.

The court can only impose conditions to reduce the likelihood a person will do one of the things that constitute an unacceptable risk. Conditions must also be reasonable having regard to the alleged offence and the accused person’s circumstances.

Show Cause Offences

Certain offences first require the person to show cause why their detention in custody is not justified, before the court considers the issue of unacceptable risk. These include:

  • any offence committed whilst the person was on bail;
  • indictable offences committed while the person was awaiting trial for another indictable offence;
  • contravening a Family Violence or Personal Safety Intervention Order by using or threatening violence and where the person has been convicted or found guilty of similar offences in the past 10 years;
  • other serious offences such as aggravated burglary, arson causing death and cultivating a narcotic plant;
  • some serious Commonwealth offences.

Offences for Which Bail Must be Refused Unless Exceptional Circumstances

Bail must be refused for the following offences unless the accused person can show that exceptional circumstances exist and there is not an unacceptable risk:

  • murder
  • treason
  • trafficking a large commercial quantity or commercial quantity of drugs
  • cultivating a large commercial quantity or commercial quantity of narcotic plants
  • certain offences relating to the importing, exporting or possessing of commercial or marketable quantities of border controlled drugs or plants (Commonwealth offences)

You should get legal advice as soon as possible if you or a family member has been refused bail so that you can get an understanding of which category the case falls into and what the prospects are of being granted bail. Contact Armstrong Legal.

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