When you are charged with a criminal offence by police, you may be released on summons or bail. In most cases police will bail you from the police station after you are charged. However, in certain circumstances, those charged with a criminal offence in Victoria will be remanded into custody. If this occurs, our experienced lawyers can assist you with applying for bail.
Bail is the conditional release of an accused person who has been charged with a criminal offence on their undertaking to the Court, that they will attend Court when required to do so. There may also be additional conditions of bail which require a person to report to the police station on sets days, abide by a residential or curfew condition and/ or engage in mental health or drug and alcohol treatment.
Bail is a fundamental aspect of the Victorian criminal justice system, balancing the presumption of innocence with the need to protect the community and ensure accused persons attend court.
A bail application is a formal application to the court to secure release from custody into the community while awaiting trial. In Victoria, bail is governed by the Bail Act 1977 (Vic), which outlines the legal tests and thresholds for the granting of bail. It is a complex piece of legislation. The Act has special provisions that relate to children, Aboriginal persons and vulnerable adults. This process often involves navigating complex legal requirements, making the support of a knowledgeable bail lawyer crucial.
Depending on the circumstances, police may apply to remand you into custody awaiting the determination of your charges. If police do apply to remand you into custody, you will be taken to a Magistrates’ Court for a Magistrate to make that decision.
The Bail Act 1977 provides the foundation for all bail-related decisions in Victoria. This legislation ensures a structured approach to granting or refusing bail, balancing the rights of the accused with community safety.
Recent amendments to the Act, have introduced stricter provisions for serious offences, placing greater emphasis on risk management. Courts must carefully assess each case, considering factors like the accused’s criminal history, the severity of the charges, and the strength of the prosecution case.
The legislative framework is guided by the following principles:
Maximising community safety: This is a paramount consideration, aiming to protect the community and individuals affected by crime to the greatest extent possible.
Presumption of innocence and right to liberty: The Act acknowledges the fundamental right to liberty and the presumption that an accused person is innocent until proven guilty.
Fairness, transparency, and consistency: Bail decision-making processes are intended to be fair, transparent, and consistent.
Public understanding: The Act aims to promote public understanding of bail practices and procedures.
In Victoria, you can apply for bail at several stages:
Immediately after being charged with an offence.
While in custody awaiting a court hearing.
When new evidence or circumstances arise, such as medical issues or additional evidence that may strengthen your case.
Bail applications are typically heard in the Magistrates’ Court but may be heard in the County or Supreme Courts for serious offences. Our skilled lawyers can help you navigate this process to improve your chances of securing bail.
Whether police are applying to remand you into custody when charged, or if you have been charged and are in custody awaiting the hearing of your matter, you have the right to apply for bail.
The offence with which you are charged will dictate which threshold test applies.
The exceptional circumstances test applies to offences in schedule 1 of the Bail Act 1977 (Vic);
The compelling reasons test applies to offences in schedule 2 of Bail Act 1977 (Vic); and
Applicants charged with an offence that is not contained in either schedule will have a prima facie entitlement to bail such that the only matter the Court will be required to be satisfied of if you are to be granted bail is that you are not an unacceptable risk.
When either the ‘exceptional circumstances’ or ‘compelling reasons’ test applies, the Court will only have regard to the unacceptable risk test once it has found that an applicant has met the relevant threshold test.
Exceptional Circumstances: If you are charged with a schedule 1 offence you must establish there are exceptional circumstances if you are to be granted bail. Schedule 1 offences are the most serious offences and include trafficking in a commercial quantity, aggravated home invasion, murder, treason, and certain terrorism offences. If exceptional circumstances are established, the bail decision-maker then moves to the second step, the unacceptable risk test.
Compelling Reasons: if you are charged with a schedule 2 offence you must satisfy the bail decision-maker that compelling reasons exists that justify the granting of bail.
Examples of Schedule 2 offences include certain serious drug offences and breaches of family violence orders. If a compelling reason is established, the unacceptable risk test is then applied.
All offences (Unacceptable Risk Test): For all offences, regardless of their classification, bail must be refused if the bail decision-maker is satisfied that there is an unacceptable risk that the accused would, if released on bail:
commit a schedule 1 or 2 offence;
endanger the safety of welfare of any other person;
interfere with a witness or otherwise obstruct the course of justice; or
fail to surrender into custody in accordance with the conditions of bail.
The prosecution must prove you are an unacceptable risk of at least one of the above if they are to persuade the court not to grant you bail. They can rely on your past criminal history and other evidence to support their position that you are an unacceptable risk.
It is important to ensure that any allegation of risk is properly addressed in an application for bail. This may mean arranging supports, such as alcohol and drug treatment or alternative housing. The key to a successful bail application is carefully preparing a tailored plan to address allegations of risk.
An application for bail usually includes cross-examining the police informant, calling witnesses and making legal submissions. A well-prepared bail application can significantly increase your chances of success. Key elements include:
Personal Circumstances: Highlight factors like employment, family responsibilities, or medical needs.
Character References: Provide letters from family, friends, or employers demonstrating responsibility and reliability.
Proposed Bail Conditions: Suggest conditions such as curfews, drug and alcohol treatment, surrendering a passport or reporting to a police station to address potential risks.
Mitigating Risk: Present evidence or plans, such as attending bail support services or arranging alternative housing or securing a bed in a residential rehabilitation program
The timing of a bail application is critical. Sometimes, your best chance at bail is to apply as soon as you are charged. On other occasions your best chance at being granted bail is by thoroughly preparing the application.
At Stary Norton Halphen, our experienced bail lawyers ensure every aspect of your application is thoroughly prepared. Our solicitor advocates have extensive experience handling bail applications across Victoria’s courts, including the Magistrates’, Children’s, County, and Supreme Courts.
At Stary Norton Halphen, our experienced bail lawyers offer tailored advice and representation to navigate the complexities of Victoria’s bail laws to secure an accused person’s freedom while awaiting trial.
Contact us today to discuss your case with an expert bail application lawyer. Call us on (03) 8622 8200 for professional advice and representation tailored to your unique circumstances.
Advice from a competent and experienced criminal lawyer before you are interviewed can and often does have a meaningful impact on the outcome of your case and in some instances, is the difference between whether your matter proceeds to court or not.
