What is the procedure for a bail application and how can a criminal lawyer assist
When a person is charged with a criminal offence in Victoria, the question of bail arises if the person is not released from custody after being charged.
A person will usually need to apply to a court for bail in two circumstances:
where the offence is of a type that only a court can grant bail, or
where a police officer or bail justice has refused bail after the person has been charged
If bail is refused at the police station, the person will be remanded in custody and brought before a court as soon as practicable. At that point they may apply for bail immediately, or in some circumstances at a later stage.
When Should a Bail Application Be Made?
The timing of a bail application is important.
In some situations it may be appropriate to apply for bail at the earliest opportunity. In other cases, it may be preferable to wait until certain matters can be addressed or supporting material can be obtained to support the application.
Under the current bail laws in Victoria, a person will generally have the opportunity to make two bail applications before a court requires them to demonstrate new facts or circumstances in order to apply again.
While this provides some flexibility, the preparation of an initial bail application remains important. A well-prepared application that addresses the issues likely to concern the court may improve the prospects of bail being granted.
For that reason, careful consideration is often given to when a bail application should be made and what material should be prepared before the application proceeds.
The Bail Tests
The test a court must apply when determining a bail application depends on the offence with which a person has been charged.
Under the Bail Act 1977 (Vic), three principal tests apply.
Entitlement to Bail
In some cases, a person is entitled to bail. This means bail must be granted unless the prosecution satisfies the court that the accused represents an unacceptable risk of:
failing to attend court
committing an offence while on bail
interfering with witnesses or obstructing the course of justice
endangering the safety or welfare of any person
Compelling Reason
For certain offences, bail must be refused unless the accused is able to show that compelling reasons exist that justify their release.
If the court is satisfied that compelling reasons exist, it must then go on to consider whether the accused represents an unacceptable risk.
Exceptional Circumstances
For the most serious offences, bail must be refused unless the accused can demonstrate that exceptional circumstances exist that justify the granting of bail.
If exceptional circumstances are established, the court must then consider whether the accused represents an unacceptable risk if released.
The test that applies in a particular case can have a significant impact on how difficult it may be to obtain bail. An experienced criminal lawyer will identify the relevant test and prepare the application accordingly.
Preparing a Bail Application
A bail application should be carefully prepared so that it addresses any concerns the court may have about releasing a person into the community.
If the court considers that a person represents an unacceptable risk, bail will be refused. A bail application therefore typically focuses on demonstrating that any potential risks can be properly managed.
Depending on the circumstances of the case, this may involve providing evidence of matters such as:
a stable and appropriate address where the person can live while on bail
access to treatment or support services where relevant issues such as addiction or mental health arise
employment or educational commitments
the availability of a surety (a person who agrees to provide money or security to support compliance with bail)
Supporting material may include witness evidence, letters from employers, treatment providers or family members, or reports from professionals where appropriate.
Careful preparation helps ensure that the court has reliable information addressing the risks relevant to the bail decision.
What Happens If Bail Is Granted?
If a person is granted bail, they will be released from custody subject to conditions imposed by the court.
All accused persons granted bail must comply with the requirement to attend court on the dates specified.
Additional conditions may also be imposed depending on the circumstances of the case. These may include requirements to:
live at a specified address
report to a police station regularly
comply with a curfew
surrender a passport
remain within Victoria
participate in treatment or support programs.
If a person breaches their bail conditions or commits further offences while on bail, the court may revoke bail and the person may be taken back into custody.
How a Criminal Lawyer Can Assist
An experienced criminal lawyer can:
identify the bail test that applies
advise on the appropriate timing of a bail application
prepare the evidence and supporting material needed to address the court’s concerns
present the application clearly and effectively before the court.
At Stary Norton Halphen & Galbally, our lawyers practise exclusively in criminal law and regularly appear in bail applications across the Victorian courts. We advise clients and their families about the bail process, assist in preparing the necessary material, and ensure that applications are 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.