Bail is a fundamental concept that underpins our justice system. Our system is predicated on the inherent belief that an accused person is innocent until proven guilty. It is for this reason that it is important to avoid holding an accused person in custody until their trial has been decided. This is essential, given court proceedings often face extensive delay and can take months, if not years, to resolve. Thus, bail entails the release of an accused person back into the community with stringent conditions in place to ensure they comply with the court and turn up to court on their next hearing date.

Overview of Bail Act

Bail in Victoria is empowered by the Bail Act 1977 (Vic). In accordance with this Act, bail can be granted by a police officer (with the rank of Sergeant or above), a bail justice, a magistrate, or a judge. The seriousness of the alleged offending will dictate the bail decision matter for a particular matter. For example, a person charged with murder can only apply to the Supreme Court for bail.

An accused person can apply for bail at any stage between being charged (and when they are placed in custody) and when their charge is finally heard in court. If bail is initially refused, they can apply again at any time if they are able to tell the court about new facts and circumstances that support them being released into the community.

The Tests for Bail

The current test for bail is convoluted. Following the 2017 Bourke Street incident, which saw community outrage and demand for a tougher system which places a greater emphasis on the safety of the community, the Victorian Government amended the Bail Act by shifting the onus onto the accused to show that they have compelling reasons as to why they should be granted bail.  Accordingly, the following tests are applied, depending on the seriousness of the offence charged.

Exceptional Circumstances Test

This applies to the most serious offences – that are ‘schedule 1 offences’ (including murder, treason, aggravated home invasion/carjacking, trafficking large commercial/commercial quantity of drugs), and any offences where an accused was on bail or serving a non-custodial sentence for a schedule 1 or 2 offence. Pursuant to section 4A of the Bail Act, the accused would need to satisfy the bail decision maker that exceptional circumstances exist which justify the granting of bail. In determining what amounts to ‘exceptional circumstances’, the decision maker must take into account the surrounding circumstances (per section 4A(3) of the Bail Act). Moreover, section 3AAA provides an extensive list of circumstances to be considered. These range from the nature and seriousness of the alleged offending, the strength of the prosecution case, whether the accused has a relevant criminal history, the accused’s personal circumstances, associations and background, the length of time the accused is likely to spend in custody if bail is refused and so on. If the bail decision maker is satisfied that there are exceptional circumstances, the accused will then need to establish that they are not an unacceptable risk to the community. This is explained below.

Compelling Circumstances Test

The compelling circumstances test applies to schedule 2 offences (such as manslaughter, serious injury offences, stalking, threats to kill, armed robbery and sex offences) and non-schedule offences where the accused has a terrorist record. In determining whether compelling reasons are in existence, the accused must rely upon the previously detailed surrounding circumstances factors prescribed in section 3AAA. If this is satisfied, they must then satisfy the unacceptable risk test.

Unacceptable Risk Test

This test applies to all non-schedule offences and all offences if the exceptional circumstances or compelling reasons test are satisfied. Unlike the previously detailed tests for bail, pursuant to section 4E(1)(a) of the Bail Act, the bail decision maker can refuse bail if the prosecution satisfies the decision maker that there is an unacceptable risk of the accused endangering the safety or welfare of any person, committing an offence, interfering with witnesses, or failing to surrender into custody with the conditions of bail. Again, the surrounding circumstances are to be considered (section 4E(3)(a)). Consideration must also be given to whether the provision of bail will endanger the safety and welfare of any person, whether the accused is a risk of reoffending, whether the accused may interfere with the investigation or fail to surrender to custody in accordance with their bail conditions. If the prosecution is unable to satisfy that the accused is an unacceptable risk, then they must be granted bail.

Imposing Bail Conditions

If an accused is deemed eligible for bail, the bail decision maker must impose any condition that will mitigate the likelihood of the accused becoming an unacceptable risk to the community. The factors outlined in section 5AAA of the Bail Act include common bail conditions, such as reporting to police, residing at a particular address, surrendering passports, imposing a curfew, not using drugs or alcohol and so on. Moreover, pursuant to section 5AAB, the bail decision maker may require the accused to pay a deposit to surety payment to secure their bail. In determining whether this is required, the bail decision making must have regard to the accused’s means and how much money is required. Cultural background and age must be considered.

Reform Proposals

Having regard to these tests, Victoria’s current bail laws are clearly complicated and extremely onerous on an accused. Accordingly, there has been extensive social commentary with many believing that the current position is unfair toward vulnerable community demographics, such as Aboriginal and Torres Strait Islander peoples, women, and youth offenders. In response to community pushback, the Victorian Government has proposed reform. Such reforms include:

  • Abolishing the “double uplift” provision, which made it more difficult for people who had committed an offence while on bail to be granted bail for a new offence.
  • Repealing the bail offences of “breaching bail conditions” and “committing further offences while on bail”, which have been shown to disproportionately impact women, children and Aboriginal people.
  • Introducing remand-prohibited offences, which will mean that people are not remanded in custody for offences that are unlikely to result in a prison sentence.
  • Changing the rules on making a second bail application, so that people do not need to prove new facts and circumstances if their first application is denied.
  • Implementing a presumption of bail for children, with exceptions for certain crimes such as terrorism and homicide offences.
  • Requiring bail decision makers to record how they have considered specific, self-determined Aboriginal considerations when deciding about bail for an Aboriginal person.

It is hoped that these reforms will come into effect by the end of the year.

How Galbally Parker Bail Application Lawyers Can Help

If you have a friend or loved one currently in custody and who wishes to apply for bail, reach out to the experienced criminal lawyers at Galbally Parker, who can help navigate the extremely difficult and onerous bail procedures currently in place.