Review of Bail Laws

Frequently Asked Questions

• What is bail?

  Bail is the release from custody of a person charged with an offence, on that person’s signed undertaking that they will appear in court to answer the charge.  This undertaking is a promise they make when they sign the bail bond entitling them to conditional freedom.  A person on bail who fails to comply with their bail conditions can be arrested.  It is an offence not to appear when required to do so.

  More information on bail is available from the Law Handbook.
   

• Who can grant bail?

  Bail may be granted by a police sergeant, a bail justice, a Magistrate or a Judge of the County Court or Supreme Court.  Bail may be opposed by the police and if granted, conditions may be attached to the bail order.

  More information on who can grant bail is available from the Law Handbook.

• What is a bail justice?

  A Bail Justice is a person who can give or refuse to give a person bail while they are in police custody.

  Bail justices primarily work outside business hours and on weekends to conduct hearings in relation to applications for bail or remand, and applications for interim accommodation orders relating to children.  Bail Justices are volunteers. Victoria is the only Australian jurisdiction that has a bail justice system.

  See more information under resources.

• What are the considerations for granting bail?

  Some considerations for Bail Justices or Courts in relation to granting bail include:

  • The presumption of innocence;
  • The seriousness of the alleged offending;
  • The strength of the police case;
  • Prior history of the alleged offender;
  • Whether offences are alleged to have been committed while a person is on bail or whether they have previously breached bail;
  • Whether the person is considered a risk to the community;
  • Whether the person is considered a “flight risk”;
  • If bail is to be granted, what conditions can be imposed to limit the risk of the alleged offender either reoffending or absconding.
• Who and in what court does the accused person apply for a bail application to be heard?

  Applications for bail may be made at several stages in the criminal justice process:

  • At the police station after arrest and upon being charged;
  • When an accused is brought before a bail justice or a Magistrates’ Court pending the hearing of the charge;
  • At the conclusion of a committal hearing in the Magistrates’ Court upon being committed to stand trial in the County or Supreme Court;
  • In the County or Supreme Court in which an indictable matter is pending;
  • Pending an appeal after conviction and sentencing; and
  • Following a successful appeal against conviction and prior to any retrial being heard.

  Bail applications may thus be heard by the police, a bail justice, a Magistrate or a judge of the County Court or the Supreme Court depending on when an accused applies for bail. Bail applications are heard at police stations or in Magistrates’, County or Supreme Court.

  An accused who has been refused bail and is in custody pending the hearing of the charge may make further bail applications, however a court must not hear a further application unless:

  • New facts and circumstances have arisen since the refusal; or
  • The applicant was unrepresented when bail was refused; or
  • The order refusing bail was made by a bail justice (s 18AA(1)(a)).

  The further application for bail must be heard by the same judge or magistrate who determined the previous application, if reasonably practicable (s 18(4)).

• Who decides which Bail Justice is allocated the case and are they on a roster?

  Bail justices register their availability on an online roster managed by the Department of Justice. The police may call in any bail justice that has marked themselves available on the roster to convene ‘out of session’ hearings when the Courts are closed. Bail justices determine whether a person arrested during the night, weekends or public holidays should be released on bail or held in custody until the Courts are open.

  The police may advise a bail justice whether or not they believe an accused should be granted bail.

• Who is present at the bail application process?

  Who is present at any given bail application varies. If a bail application is made out of court hours after a person has been arrested in the middle of the night, it is unlikely that the accused will have access to legal representation. Defence council will likely be present at bail applications heard at court; however accused may opt to represent themselves in the courts to expedite their bail applications.

  There will generally be more people present (such as defence council and social workers etc. who can provide character references) at more rigorously prepared bail applications.

• Where is the bail application heard?

  Bail applications may be heard at a police station or in the Magistrates’, County or Supreme Courts. If a bail application is heard in the Magistrates’, County or Supreme Court the bail application is heard in a formal courtroom setting.

  If it is not practicable to bring an arrested person before a court immediately after that person has been taken into custody, a bail application may be heard in a police station. A police officer – of the rank of sergeant or above or the officer in charge of the police station – must inquire into the case and may grant or refuse bail. An accused person can object to the refusal to grant bail or, if bail is granted, to the amount of money fixed for bail or to any conditions the police attach to the bail; for example, daily reporting conditions at a police station. In either case, the police must orally advise the accused of their right to apply to a bail justice for a review of the police decision, or they must give the accused a written statement detailing this right (s 10(2)). If the accused wants to apply to a bail justice in this way, the police have a duty to bring the person before the bail justice as soon as practicable.

   

   

• Is the Bail Justice provided with the full facts of the case from the prosecutor, the police and the defence council?

  Bail justices operate in an environment that is very different from a court. They are often making decisions out-of-hours very soon after the accused person has been arrested with limited information. During the application, the bail justice will hear from both the accused and the police. Given the circumstances of the hearing, it is very unlikely that a bail justice will have access to a full account of the facts of the case.

  More informed bail applications generally take place at a later date before a Magistrate or a judge of the County or Supreme Court.

• By what authority can the Bail Justice override and reject the recommendations of the police?

  Section 12 of the Bail Act 1977 authorises a bail justice to grant or refuse bail at their own discretion.

• Can the decision of the Bail Justice be appealed?

  A decision of a bail justice can be appealed.

  Section 18A of the Bail Act allows the Director of Public Prosecutions to appeal to the Supreme Court against an order granting bail if the Director is satisfied that the conditions of bail are insufficient or the decision to grant bail contravenes the Bail Act, and the Director is satisfied that it is in the public interest to appeal.

  A person remanded by a bail justice also has a right of appeal by virtue of the fact that they have an automatic right to re-apply for bail if they were remanded by a bail justice (see s 18AA(1)(a) of the Bail Act).  

• Does the Bail Justice hear applications on other matters?

  Bail justices do not hear applications on matters other than bail applications.