Bail – Balancing Community Protection and the Rights of the Accused
Overview
There has been considerable recent controversy regarding the changes to the bail laws in Victoria that were recently introduced. Controversy regarding bail decisions and bail legislation in Australia is not a new thing. When a person is charged with a serious crime and it is revealed they were on bail at the time there is outcry – some of it genuine, some confected.
The sentiment underlying the outcry is always essentially the same – had this person not been granted bail this crime would not have been committed.
Sometimes that is the tragic reality. Sometimes it is not.
The Pull Toward Preventative Detention
What really underpins that sentiment is an endorsement of, or desire for, preventative detention – that is locking people up on the basis of what they might do, not on the basis of what they have done or have been proven to have done under the criminal justice system in Australia.
This type of thinking, in some ways, calls into doubt the legitimacy of bail in its entirety.
Why Do We Have Bail?
It is worth considering what the purpose of bail is within the Australian bail system – why have it? What function does it serve in criminal law and bail decision-making? Only then can the way in which bail is effected be assessed with greater nuance and understanding.
To examine these questions, bail must be placed within the broader context of our system of justice and the core principles upon which it is built.
Fundamental Legal Principles
It might seem simplistic, but fundamental to any criminal case in Australia is the right of the accused to choose whether they plead guilty or not guilty. Taking away this right would be inconceivable. We do not allow torture or other forms of coercion to bring about a guilty plea. The choice is, properly, left to the accused.
Once it is accepted that every accused has the right to plead not guilty, other key principles in Australian criminal law follow:
The presumption of innocence
The requirement for the prosecution to prove the case beyond reasonable doubt
Liberty and the Seriousness of Remand
Remanding an accused in custody is an inherent infringement on their rights under the bail and remand system. Sometimes it is necessary. But taking away a person’s liberty is the gravest step that can be taken in a civilised society such as ours. It should not be done lightly.
In keeping with that approach, a sentencing court must, unless legislation provides otherwise, consider all other options before sending an offender to prison. Jail is the sentence of last resort in Australian sentencing law.
This means that not all offenders will be sentenced to imprisonment at the end of their cases.
Not Everyone Charged Is Guilty
Of course, not all people charged with crimes are guilty. Witnesses and police make mistakes. Some cases simply cannot be proved.
The result is that not everyone charged with a criminal offence in Australia is found guilty – let alone goes to jail.
Once these facts are accepted, the issue of how bail works in Victoria and Australia becomes far more complex.
What Should Bail Decisions Be Based On?
What then should be the key questions in bail risk assessment when deciding whether a person should be granted bail?
Should entire categories of offences automatically exclude bail under bail laws in Victoria?
If so, what happens to those who are innocent?
These questions highlight the difficulty in designing any fair bail system in Australia.
The Reality of Limited Resources
To properly consider bail, practical realities must also be acknowledged.
The resources of the Victorian justice system are under constant strain. From courts to police, from prosecutors to legal aid, funding is finite. This means cases take time—often a long time.
It is far from unusual for a case in the Victorian criminal justice system to take more than two years from arrest to verdict.
Do we simply remand all accused persons for that length of time?
Do we allow their employment or education to be disrupted, and their families to go without support?
Risk: The Central Question in Bail Law
If not, what must be assessed? The simple answer is risk.
But assessing risk in bail applications is inherently difficult. Predicting future behaviour is fraught.
So we return again to the purpose of bail in Australia’s legal system: to ensure that liberty is only taken when necessary—not simply because a person has been charged.
Risk of What?
If bail is about risk, the next question is: risk of what in bail decision-making courts?
Logically, the key risks are:
The risk the accused will not attend court
The risk they will commit further offences while on bail
The risk they will endanger the community
In reality, these risks are often interconnected in criminal bail assessments.
How Is Risk Assessed?
The first logical factor is the seriousness of the offence charged. Suggestions that the Australian justice system is not based on logic are unfounded.
If someone is facing serious consequences, the incentive to avoid court is clearly relevant in bail risk assessments in Victoria.
However, seriousness alone is not determinative. Courts must also consider:
Criminal history (if any)
Living arrangements
Employment status
Drug or personal issues
The circumstances of any alleged victim
In addition, courts must assess how long the case is likely to take and whether the accused risks spending more time on remand than they would if ultimately sentenced.
Balancing Rights and Community Safety
The Australian justice system does not operate solely on the rights of the accused. Those rights must be balanced against the safety of the community.
This balancing exercise is complex and fact-specific in every bail hearing in Victoria. It requires careful consideration of all surrounding circumstances.
Conclusion: The Reality of Bail Decisions
This is the task courts face every day in bail applications across Victoria and Australia. They assess the available material and make careful decisions.
It is no small thing to deprive a person of their liberty—and nor should it be.
Media reporting that suggests courts are not properly assessing risk, or that changes to the Bail Act in Victoria have prevented police from seeking remand for high-risk accused persons, does not reflect the reality of court practice or the state of the law.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.