How Bail Applications Are Handled in the Supreme Court: What to Expect
Bail is the release from custody of a person charged with an offence, on the person’s signed undertaking that they will appear in court to answer the charge. It is a fundamentally important aspect of the criminal justice system, as a grant of bail permits an accused to await the hearing of the charge whilst living in the community, or in a treatment facility such as a rehabilitation centre. A grant of bail commonly involves specific conditions that an accused must comply with.
In Victoria, only the Supreme Court may grant bail to a person accused of certain offences such as treason and, other than in very limited circumstances, murder.
However, these are not the only applications for bail that may be made in the Supreme Court. The Supreme Court has inherent jurisdiction to grant bail to people held in custody awaiting trial for any offence. As such, an application for bail may be made in the Trial Division of the Supreme Court when a person has been denied bail by a Magistrate or a Judge in a lower court. It is not necessary to show that the Magistrate or Judge below made an error, nor is there a legislative requirement to demonstrate that there are new facts and circumstances justifying the grant of bail.
The Court of Appeal Division of the Supreme Court also hears appeals from an order refusing the grant of bail.
This article will address what a Supreme Court bail application is, when an accused may apply, the key considerations the Court must take into account, and common challenges that arise in these applications.
What Is a Supreme Court Bail Application?
The Supreme Court has the power to grant bail to a person held in custody awaiting trial for any offence.
The Bail Act 1977 applies to any application for bail in the Supreme Court. This Act outlines the guiding principles, relevant tests, and the circumstances the Court must take into account when determining a bail application. The Act has recently been amended to make it harder for an accused person to be granted bail.
The applicable legislation and legal principles involved in these hearings are complex, particularly for serious indictable offences where a conviction may result in a lengthy term of imprisonment. Representation by an experienced criminal lawyer who is familiar with preparing and appearing in these hearings is critical.
Key Factors Considered by the Supreme Court
In considering an application for bail, the Court must consider (amongst other factors):
Nature and seriousness of the alleged offending and strength of the prosecution case
Bail applications in the Supreme Court often depend heavily on the seriousness of the alleged offending, the strength of the prosecution case, and the likely sentence if convicted. These applications may involve cross-examination of police witnesses, where weaknesses in the prosecution case and triable issues can be explored. It is essential that an accused’s lawyer is fully across the brief of evidence to identify and address these issues.
Criminal history of the accused
The Court will consider whether the accused has a prior criminal history and their compliance with previous court orders, including any previous grants of bail.
Special vulnerability of the accused
The Bail Act provides additional considerations for applications involving Aboriginal people, children, individuals with ill health, or those with intellectual disability and/or cognitive impairment.
Availability of treatment or bail support services
Evidence of rehabilitation programs or support services such as drug and alcohol treatment or mental health support may strengthen a bail application.
Risk of failing to answer bail
If the prosecution alleges an unacceptable risk of absconding, the Court will consider whether conditions such as electronic monitoring or reporting requirements can mitigate that risk.
Risk to the safety or welfare of any person
The Court will assess whether the accused poses a risk to others, considering the alleged offending and criminal history.
Availability of suitable bail conditions
Conditions may include bail sureties, curfews, reporting obligations, restrictions on contact, location exclusions, or electronic monitoring.
The Supreme Court Bail Application Process
1. Filing the Application
A bail application is commenced by filing documents, including an affidavit outlining the evidence relied upon. Preparation requires careful attention to detail and a clear understanding of the accused’s circumstances.
In urgent cases, applications may be listed within hours or days, making experienced legal representation essential.
2. Court Hearing
During the hearing, documentary evidence and oral evidence may be presented. Both parties make submissions to the Court.
3. Decision
The Judge will either grant or refuse bail. If granted, the Court may impose any conditions it considers appropriate.
What to Expect During a Supreme Court Bail Hearing
Supreme Court bail applications are complex and highly contested. The Court must balance competing considerations while ensuring compliance with strict legal tests.
These hearings are formal, and the prosecution is typically well-resourced and prepared. The imbalance between the prosecution and accused is often significant.
In some cases, media attention may also add additional pressure and complexity.
Experienced legal representation is critical to:
Analyse the prosecution brief
Prepare and present evidence
Liaise with witnesses and support services
Advise on strategy and risk
Present persuasive legal submissions
Conclusion
Securing bail in the Supreme Court is a difficult process. Recent amendments to the Bail Act 1977 have made bail applications more challenging for accused persons.
Bail applications in the Supreme Court require detailed preparation, strong legal knowledge, and careful forensic analysis.
Experienced criminal lawyers can provide essential advice and representation to improve the prospects of a successful bail application and ensure the matter is properly prepared and presented before the Court.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.