How Bail Applications Are Handled in the Supreme Court: What to Expect

Introduction

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, for a grant of bail permits an accused to await the hearing of the charge whilst living in the community, or some form of 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 is a Supreme Court bail application, when an accused may apply, some of the key considerations the Court must consider and some 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, the relevant tests that apply to various bail applications and various circumstances that the Court must take into account in determining an application. This 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 applications involving serious indictable offences where, if convicted, an accused will likely be sentenced to a lengthy term of imprisonment. Representation by a competent and experienced lawyer who is familiar with preparing for and appearing in these hearings is crucial to successfully applying bail.

Key Factors Considered by the Supreme Court

• In considering an application for bail, the Court must consider (amongst a number of other factors):
  
  • The nature and seriousness of the alleged offending and the strength of the Prosecution case: Bail applications in the Supreme Court invariably hinge on the nature of the alleged offending, the strength of the evidence against the accused and the likely sentence an accused would receive if they are convicted. These applications almost always involve cross-examination of police witnesses during which any weaknesses in the Prosecution case and triable issues can be explored. It is integral that an accused’s lawyer is completely across the brief of evidence in order to identify, explore and address the Court on these issues.
  • The accused’s criminal history: An important factor on any bail application is whether the accused has a prior history of criminal offending and their previous compliance with court orders, including any previous grants of bail.
  • Any special vulnerability of the accused: The Act provides that specific considerations apply to applications involving an Aboriginal person, a child, a person experiencing any ill health or who has any form of disability including an intellectual disability and/or cognitive impairment.
    
  • The availability of treatment or bail support services: Depending on the specific needs of an accused person, evidence of the availability of treatment or support services, such as drug and alcohol rehabilitation or mental health services, can strengthen an application for bail.
  • Whether the accused represents an unacceptable risk of failing to answer bail: If the Prosecution alleges that an accused person is a risk of failing to answer bail, careful consideration needs to be given to what arrangements (such as, for example, electronic monitoring) and submissions can be made to meet this submission and reduce the asserted risk.
  • Whether the accused represents an unacceptable risk of endangering the safety or welfare of any person: Addressing this factor will often require carefully considered and persuasive submissions about the nature of the alleged offending and the accused’s history.
  • The availability of suitable conditions: These may include a bail guarantee in the form of a sum of money or equity in a property, a curfew, judicial monitoring, reporting obligations to the police and prohibitions on contacting certain persons, accessing the internet or attending certain locations

The Supreme Court Bail Application Process

1. Filing the Application

• An application for bail is commenced by the filing of various documents, including an affidavit which outlines the evidence which will be relied upon on the application. The preparation of these affidavits and the compilation of evidence requires careful planning. Being represented by a diligent lawyer who is able to understand the history of the proceeding and an accused person’s personal circumstances greatly assists in preparing these affidavits.
• Depending on the circumstances, it may be necessary to seek that the hearing occur on very short notice, sometimes in a matter of hours or days. In such cases, legal representation is essential to secure a hearing as soon as possible.

2. Court Hearing

• During the hearing, evidence in the form of documents and oral evidence from witnesses is called and the parties make submissions to the Court.

3. Decision

• The Judge may grant or refuse the application. If bail is granted, the Judge may impose any condition that they consider appropriate.

What to Expect During a Supreme Court Bail Hearing

Applications for bail in the Supreme Court are complex. The Court is required to balance various conflicting considerations. They are formal hearings. The Prosecution are well-resourced and prepared. The power imbalance between the Prosecution and an accused is significant. In high profile cases, these hearings attract significant media attention which comes with added risks and considerations. The expertise of experienced legal representation to analyse the brief, explain the process to an accused, obtain instructions, liaise with support services and witnesses, compile evidence that will assist and appear on the application is essential to being able meet these challenges and secure bail.

Conclusion

Securing bail in any matter is a difficult process and with recent amendments to the Bail Act 1977, it is even harder for an accused person to successfully apply for bail. Applications for bail in the Supreme Court require meticulous preparation, excellent knowledge of the law and sound forensic judgment. Our solicitors are experienced in these applications and best placed to provide any accused person with honest and accurate legal advice and expert representation in these matters.