Bail Applications in Victoria
What You Need to Know
If you are charged with a criminal offence in Victoria, you may be released by police on a summons or granted bail.
A summons is a court order requiring you to attend court at a later date.
Bail is an undertaking between you and the police or the court. It allows you to remain in the community while your charges are ongoing, provided you comply with certain conditions and attend court when required.
In some cases, police will apply to remand you in custody. If that occurs, you will be brought before the Magistrates’ Court, where a magistrate will decide whether you are granted bail or remain in custody.
Whether you have just been charged or are already in custody, you have the right to apply for bail.
Bail Law in Victoria
Bail in Victoria is governed by the Bail Act 1977 (Vic). It is a complex piece of legislation that sets out when a person should be granted bail and when they should be refused.
The Act includes specific provisions that apply to:
Children
Aboriginal persons
Vulnerable adults
Depending on the nature of the charges and your criminal history, you may:
Be entitled to bail; or
Be required to satisfy a legal test before bail can be granted
These tests are commonly referred to as the “bail thresholds.”
The Bail Tests in Victoria
In Victoria, there are three broad categories:
1. Presumption in Favour of Bail
For less serious offences, a person is generally entitled to bail unless the prosecution can show why it should be refused.
2. Compelling Reasons Test
For more serious offences, you must show a compelling reason why bail should be granted.
3. Exceptional Circumstances Test
For the most serious offences, you must demonstrate exceptional circumstances to justify release.
Even if the relevant test is satisfied, bail must still be refused if the court considers that you pose an unacceptable risk.
What Is an Unacceptable Risk?
Bail will be refused if the prosecution can show that you present an unacceptable risk of:
Endangering the safety or welfare of another person
Committing further offences
Interfering with witnesses or obstructing justice
Failing to attend court
If these risks are raised, they must be addressed directly in the bail application. This often involves putting forward a structured plan to reduce or eliminate those risks.
Compelling Reasons
Where the compelling reasons test applies, the onus is on the applicant to justify why bail should be granted.
The decision in Re Ceylan [2018] VSC 361 provides guidance on this test. The Court confirmed that all relevant circumstances must be considered, including:
The strength of the prosecution case
The accused’s personal circumstances
Criminal history
A compelling reason must be forceful and persuasive, demonstrating that continued detention is not justified in the circumstances.
This is a lower threshold than exceptional circumstances, but it still requires a well-prepared and structured argument.
Exceptional Circumstances
For certain serious offences, the exceptional circumstances test applies.
This is a significantly higher threshold.
In Re CT [2018] VSC 559, the Supreme Court confirmed that exceptional circumstances may arise from a combination of factors, including:
The strength or weakness of the prosecution case
Delay in bringing the matter to trial
Unique features of the alleged offending
The personal circumstances of the accused
The court assesses all factors collectively to determine whether they are sufficiently out of the ordinary to justify bail.
While not defined in legislation, relevant considerations may include:
Age
Mental health
Employment
Strength of the prosecution case
Delay
Availability of a surety
Nature of the alleged offending
Allegations of Risk
Even where compelling reasons or exceptional circumstances are established, bail will still be refused if the prosecution proves an unacceptable risk.
Addressing risk is a critical part of any bail application.
This may involve:
Arranging stable accommodation
Engaging in treatment (for example, drug or alcohol support)
Proposing strict bail conditions
Providing support persons or sureties
A properly prepared bail application will anticipate these issues and respond to them in a structured way.
Preparing a Bail Application
A bail application is not simply a request for release. It is a legal process that may involve:
Cross-examining the police informant
Calling witnesses
Preparing supporting material
Making detailed legal submissions
Timing is also critical. In some cases, an early application is appropriate. In others, it may be beneficial to delay an application until sufficient material can be gathered to support it.
Careful preparation often has a significant impact on the outcome.
Why Legal Advice Is Important
Bail law in Victoria is complex and has been subject to significant amendments, including changes introduced in 2024.
Identifying:
Which bail test applies
Whether the test can be met
How to address allegations of risk
requires careful legal analysis.
At Stary Norton Halphen & Galbally, our lawyers regularly appear in bail applications across the Magistrates’, Children’s, County and Supreme Courts.
What This Means for You
If you have been charged with a criminal offence and bail is an issue:
You may not automatically be entitled to bail
The applicable test will depend on the charge and your history
Even if you meet the test, risk must still be addressed
Preparation and timing can significantly affect the outcome
Obtaining legal advice early allows you to understand your position and prepare an application that is properly structured and supported.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.