Bail Application

The Law can be confusing to navigate through, and at Paul Vale Criminal Law, we endeavour to help you to attain greater understanding about the criminal justice system. By providing you with specialised insight and up to date information, we hope to clarify the process of what Bail is in the Melbourne Criminal Law System 

What is Bail?

Bail is the temporary release of an accused person awaiting trial. If you have been arrested and interviewed by the Victorian Police in relation to criminal matters you may be charged and released on Bail, or held in custody until a successful Bail application has been conducted. Due to the fact that your personal freedom is in jeopardy, it is highly advisable that you obtain a legal representative to conduct your bail application.

Changes to Bail laws

The law relating to bail in Victoria underwent significant changes in 2018, with various amendments to the Bail Act 1977 (Vic). Now, depending on the accused person themselves and the type of offence they are charged with, the police may not have the power to release the accused person on bail and that decision may have to be made by a Court.

Even then, again depending on the type of offence a person is charged with, that person may then have to show the Court that either “exceptional circumstances” or a “compelling reason” exist as to why they should be released on bail. If that occurs, it is up to the prosecution to show that the person seeking to be released on bail is an “unacceptable risk” of certain factors.

There are a variety of “surrounding circumstances” which must be considered by the Court in determining whether “exceptional circumstances”, a “compelling reason” or an “unacceptable risk” has been shown.

A person may no longer be in a position where the presumption is that they are entitled to be released on bail when they are charged with an offence. Being granted bail can be a very complicated process. It is very important that you or your loved ones seek proper legal representation if they want to be released on bail.

Categories of Bail

The Bail Act delineates people seeking to be released on bail into categories of “Exceptional Circumstances”, “Compelling Reason” and “Unacceptable Risk.” The category you fit into depends on various factors, including:

• The offence(s) you are charged with
• The seriousness of the alleged offending
• Your personal circumstances
• Your previous criminal history (if any)

‘Exceptional Circumstances’

You have been charged with either an offence under Schedule 1 of the Bail Act, or an offence under Schedule 2 of the Bail Act in circumstances 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 undergoing a Community Corrections Order, on parole, or otherwise serving a sentence for a Schedule 1 or Schedule 2 offence
• The offence is an offence of conspiracy to commit, incitement to commit or attempting to commit an offence in the above circumstances

The Bail Act does not define “exceptional circumstances” but case law in Victoria has held that, in order to be exceptional, the circumstances relied upon must be such as to take the case out of the normal so as to justify being granted bail. A combination of factors can be relied upon to show exceptional circumstances.

“Compelling Reason”

You have either been charged with an offence under Schedule 2 of the Bail Act, but none of the dot points under the “Exceptional Circumstances” heading applies to you, or you have been charged with an offence that is neither a Schedule 1 of Schedule 2 offence, but:

• You have a terrorism record
• The Court considers there is a risk you will commit a “terrorism or foreign incursion” offence

Again, the Bail Act does not define “compelling reasons” but case law in Victoria has held that a compelling reason is one which is forceful and therefore convincing, a reason which is difficult to resist, but not one that must be exceptional.

Unacceptable Risk

The prosecution alleges that there is a risk you will, if released on bail:

• Endanger the safety or welfare of any person
• Commit an offence while on bail
• Interfere with a witness or obstruct the course of justice in any matter (not just your own)
• Fail to surrender into custody in accordance with the conditions of bail

The prosecution must also show that this risk is an unacceptable risk. A Court may decide that, even if a risk is present, it is not “unacceptable” because certain conditions of bail, such as reporting to a police station each day, can bring that risk down to an acceptable level.

Surrounding Circumstances

When a Court is required to consider the “surrounding circumstances” in any decision in connection with bail, they must take into account all the circumstances of the matter that are relevant to it, which include:

• The nature and seriousness of the alleged offence
• The strength of the prosecution case
• The criminal history of the accused person
• The extent to which the accused person has complied with any earlier grants of bail
• Whether, at the time of the alleged offence, the accused person was already on bail or summons for a different offence
• Whether a Family Violence Intervention Order is in forcer against the accused person
• The accused person’s personal circumstances and background
• Whether the accused person has any “special vulnerability”

Bail Conditions

If you are released on Bail, you may only need to make a formal promise (an undertaking) to attend Court when directed to. In other circumstances, you may be required to adhere to certain conditions such as:

• Living at a fixed address;
• Exclusion from certain locations;
• Not associating with certain individuals;
• Reporting to a Police Station on a regular basis;
• Surrendering your Passport, and not attending any points of international departure (i.e. airport), and/or;
• Providing a surety

A surety condition requires that a person who is at least 18 years old to provide a financial guarantee to the court that your bail conditions will be adhered to. The surety amount does not only have to be paid in cash but property (eg: real estate) may also be used. The person providing the surety must be able to prove to the court that they own the relevant property and what its value is.

What if I do not comply with my Bail?

It is a criminal offence to contravene any conditions of Bail that relate to your conduct (other than the attendance and participation in bail support programs), for example, not presenting yourself at a designated Police Station within the timeframes required.

It is also a criminal offence to commit an indictable offence whilst on Bail and fail to attend Court while on Bail.

If you have been released on bail always attend Court when directed to.

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