What is Bail?

Bail is the temporary release of an accused person while they await trial. If Victoria Police arrest and interview you in relation to a criminal matter, police may charge you and release you on bail. Alternatively, police may keep you in custody until the court hears a bail application.

Because your freedom is at stake, you should obtain legal representation as early as possible.

Changes to Bail Laws

Victoria changed its bail laws significantly in 2018 through amendments to the Bail Act 1977 (Vic). As a result, police may no longer have the power to grant bail in some cases. Instead, a court may need to decide the application.

In some matters, the accused must show either exceptional circumstances or a compelling reason before the court will grant bail. If that threshold applies, the prosecution must then show that the accused presents an unacceptable risk.

The court must also consider a range of surrounding circumstances when deciding whether exceptional circumstances, a compelling reason, or an unacceptable risk exists.

A person charged with an offence may no longer have the benefit of any presumption in favour of bail. For that reason, bail applications can be complex. You or your loved ones should seek proper legal representation as soon as possible.

Categories of Bail

The Bail Act places bail applications into three broad categories:

• Exceptional Circumstances
• Compelling Reason
• Unacceptable Risk

The category that applies will depend on matters such as:

• the offence or offences charged
• the seriousness of the alleged offending
• your personal circumstances
• your criminal history, if any

Exceptional Circumstances

You may need to show exceptional circumstances if you are charged with an offence under Schedule 1 of the Bail Act, or with a Schedule 2 offence in certain circumstances, including where:

• you have a terrorism record
• the court considers there is a risk you will commit a terrorism or foreign incursion offence
• you were on bail, summons, or at large for a Schedule 1 or Schedule 2 offence
• you were serving a sentence, on parole, or subject to a Community Corrections Order for a Schedule 1 or Schedule 2 offence
• the offence involves conspiracy, incitement, or an attempt connected to those circumstances

The Bail Act does not define “exceptional circumstances.” However, Victorian case law explains that the circumstances must take the matter out of the ordinary. A combination of factors may establish exceptional circumstances.

Compelling Reason

You may need to show a compelling reason if:

• you are charged with a Schedule 2 offence, but the exceptional circumstances provisions do not apply, or
• you are charged with an offence that is not listed in Schedule 1 or Schedule 2, but you have a terrorism record or the court believes there is a risk you will commit a terrorism or foreign incursion offence

Again, the Bail Act does not define “compelling reason.” However, Victorian case law explains that a compelling reason must be forceful and convincing, even though it does not need to be exceptional.

Unacceptable Risk

The prosecution may argue that, if released on bail, you pose a risk that you will:

• endanger the safety or welfare of another person
• commit an offence while on bail
• interfere with a witness or obstruct the course of justice
• fail to surrender into custody in accordance with your bail conditions

The prosecution must do more than point to a risk. It must show that the risk is unacceptable. In some cases, the court may decide that bail conditions can reduce the risk to an acceptable level.

Surrounding Circumstances

When the court considers the surrounding circumstances, it must take into account all relevant matters, including:

• the nature and seriousness of the alleged offence
• the strength of the prosecution case
• the accused person’s criminal history
• the extent of compliance with any previous grants of bail
• whether the accused was already on bail or summons for another matter at the time of the alleged offence
• whether a Family Violence Intervention Order is in force against the accused
• the accused person’s personal circumstances and background
• whether the accused person has any special vulnerability

Bail Conditions

If the court grants bail, it may require only a formal undertaking to attend court when directed. However, in other cases, the court may impose additional conditions such as:

• living at a fixed address
• staying away from certain locations
• not associating with certain people
• reporting to a police station regularly
• surrendering a passport and staying away from international departure points
• providing a surety

A surety is a financial guarantee given to the court. The person providing the surety must be at least 18 years old. They must also prove ownership and value if they rely on property rather than cash.

What if I do not comply with my Bail?

It is a criminal offence to breach bail conditions that regulate your conduct, other than conditions requiring attendance at a bail support program. For example, you may commit an offence if you fail to report to a police station as required.

It is also a criminal offence to commit an indictable offence while on bail. Likewise, it is a criminal offence to fail to attend court while on bail.

If you have been released on bail, always attend court when directed.

Read up on some of our past criminal law cases studies.

Disclaimer: Please be aware that the above piece is NOT intended to be definitive legal advice. If you have enquires relating to the above subject matter, please contact us for an obligation free, face to face consultation.