Your Guide to Bail Applications

man holding jail bars

Have you been charged with a criminal offence and want to make an application for bail? You should always work with an experienced criminal lawyer during the bail application procedure. Find out more about bail applications, breaching bail and more.

What is Bail?

Bail refers to the process that allows a person to be released back into the community after being arrested and charged with a criminal offence. It is the opposite to being held in custody, when you are imprisoned by the police and unable to go home. Bail exists to prevent people being held in custody unnecessarily or for longer than is appropriate given their offence. Bail application laws and rights in Victoria are legislated under the Bail Act 1977 (Vic).

When you are granted bail, you are allowed to re-enter the community, go home, and continue with your regular life until the date of your next Court hearing. However, the Court will impose a set of conditions for you whilst on bail. These may include not fraternising with certain people, not visiting certain places, or not engaging in certain activities. If you break these conditions, you may be penalised and face further criminal charges.

The Bail Application Procedure

Bail can be granted at multiple times during the process of being arrested for or charged with criminal activity.

Minor Offences

If you are charged with a minor or summary offence, the police may grant you bail on the spot. This means that you will not be taken into custody. You will be issued a summons and required to attend court on a set hearing date. Failure to do so can result in further charges, carrying a penalty of 3 to 12 months’ imprisonment.

Serious Offences

If you are charged with a serious offence, the police may decide to hold you in custody. This is because they deem you are a risk to the community, or they think you will not attend court if issued with a summons. If this happens and you wish to make a bail application, you will be taken to Court to do so.

Making a Bail Application

You have the right to make a bail application and you can request to appear before a Court as soon as possible. You should always contact a criminal lawyer to assist you with this process.

When making a bail application, your lawyer will need to prove to the court that custody is not justified in your case. On the other hand, the prosecution will try to prove that you pose a risk to the community. The final decision on whether to grant you bail is made by the Court.

Before you are released from custody, you may also be asked to make a money deposit that you will forfeit if you breach bail conditions.

Considerations in a Bail Application

When deciding whether or not to grant you bail, the Court will look at two areas: unacceptable risk and compelling reasons or exceptional circumstances.

Unacceptable Risk

The prosecution will attempt to show that you pose an “unacceptable risk” of breaching bail conditions. This could be the case if the Court believes that you might:

  • Commit an offence while on bail
  • Endanger the safety or welfare of someone
  • Interfere with a witness
  • Fail to surrender into custody
  • Obstruct the course of justice in any way.

Compelling Reasons and Exceptional Circumstances

Your lawyer can attempt to demonstrate “compelling reasons” or “exceptional circumstances” to the Court to show that custody is not justified in your case. As the accused, you are your legal team need to provide these compelling reasons. Some possibilities include:

  • Prior compliance with bail conditions
  • Clean criminal record
  • Stable employment
  • Stable living arrangements
  • Supervision by family
  • Participation in programs such as rehabilitation, counselling, or bail programs.

You can also argue that there are “exceptional circumstances” as to why detention in custody is not justified. Examples of “exceptional circumstances” might include:

  • Exceptional hardship
  • Serious illness
  • Assisting authorities in their investigation.

Breaching Bail

If you are granted bail, there will be a number of conditions imposed by the Court. These may include:

  • Surrendering your passport
  • Not leaving the state
  • Staying at a specific address
  • Reporting into a police station regularly.

Breaching your bail conditions is a criminal offence under the Bail Act Victoria. If you breach bail, you could be charged with the following offences:

  • Fail to Answer Bail (s30) – maximum penalty of 2 years imprisonment.
  • Contravene Certain Conduct Con
  • Commit Indictable Offence Whilst on Bail (s30B) – maximum penalty of 30 units or 3 months imprisonment
  • Indemnifying Surety (s31) – maximum penalty of 15 units or 3 months imprisonment.

If you are Not Granted Bail

If you are not granted Bail by the court, or you choose not to make a bail application you will be remanded in custody until your matter is finalised. This can take days, months or even years. Depending on your case and circumstances, you may make an application for bail at a later time or appeal your original bail decision.

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