Applying for bail after being remanded in custody is a uniquely confusing and stressful experience for an accused person and their family. The process of making the application will depend on a number of factors, including:

  1. The offence alleged;
  2. Whether the accused was already on bail when charged with the additional offending;
  3. The Police and Prosecution position in relation to bail; and
  4. Whether the accused has the appropriate supports in place if released.

Applying for Bail in Victoria is a two-step process.

The First Step in Applying for Bail in Victoria

The first step involves the accused satisfying the Court that they should be granted bail. The test that the accused must meet depends on the offence alleged. For the most serious alleged offending, the accused must satisfy the Court that exceptional circumstances exist which justify a grant of bail. For lesser alleged offending, the accused may have to satisfy the Court that a compelling reason exists which justifies a grant of bail. For low level alleged offending, the accused may be prima facie entitled to bail.

The Second Step in Applying for Bail in Victoria

The second step involves an assessment of whether the accused poses an unacceptable risk if granted bail. If unacceptable risk is alleged, the Prosecution must satisfy the Court that the accused would pose an unacceptable risk or reoffending, interfering with witnesses or of flight, if they were to be released on bail. If the Prosecution raises unacceptable risk, they have to satisfy the Court that this risk cannot be reduced (or ameliorated) by appropriately framed bail conditions. For example, the Prosecution would have to satisfy the Court that the accused would remain an unacceptable risk of flight even if bail conditions were imposed hich wrequired the accused to forfeit their passport, not attend points of international departure (such as the airport) and report regularly to their local Police Station.

Applications for Bail can be made initially to the Magistrates’ Court. However, where the offending is of the most serious kind (such as an alleged murder), often the Supreme Court of Victoria is the only Court that can hear a Bail Application.

Proper Preparation of Applications for Bail

Properly preparing Applications for Bail is essential to an accused person’s prospects of success. For serious offending, the accused person may be remanded in custody for a period of time whilst their Application for Bail is properly prepared and listed in Court. The delay between when the accused is remanded and when their Application for Bail is listed can be very distressing for the accused and their family. However, it is important to remember that, if the accused rushes an Application for Bail and is unsuccessful, it can be much harder to apply a second time. Particularly, if they can’t demonstrate that circumstances have changed since the first Application for Bail was made. This is particularly relevant if the accused is subject to the ‘exceptional circumstances’ test.

Exceptional circumstances can include:

  • A weak prosecution case;
  • The availability of a significant surety;
  • The accused’s medical or psychiatric history and ongoing conditions;
  • The availability of rehabilitation, if drugs and alcohol are an issue;
  • The conditions in custody; and
  • The expected delay in the Prosecution case.

In order to make an Application for Bail, the accused has to produce evidence in support of their Application. For example, affidavits from a family member attesting to the availability of  sufficient surety to secure bail or, evidence of the accused suitability to be admitted into a residential rehabilitation program. Collecting this evidence can take a little bit of time but it is worth it!

When the Bail Application is heard in Court, the Prosecution will call the Informant to give evidence. ‘Informant’ is the term used to identify the Police Member who is in charge of the investigation into the accused and who will prepare the Brief of Evidence to be relied upon by the Prosecution. The Informant can give evidence in relation to whether they oppose the Application for Bail, whether they are alleging unacceptable risk and the bases for this allegation. The Informant will then be cross-examined by the accused’s lawyer who may challenge them in relation to the evidence of unacceptable risk. They may also ask questions in relation to the nature of the investigation, the evidence that has been gathered and the delay expected in preparing and serving the Brief of Evidence.

After the Informant is cross-examined, the accused’s lawyer can call evidence in support of the Application. They may call the accused, their family member(s) and/or any psychologist or rehabilitation consultants who will provide ongoing care to the accused if they are released. After calling the evidence, the accused’s lawyer will address the Court and argue why bail ought be granted and, if granted, on what conditions. The prosecution will then argue why bail ought not be granted and address the Court on why the Prosecution considers the accused to be an unacceptable risk if released on bail.

The Court will then consider the evidence, and arguments put, and either make a decision on the spot or adjourn the application for a decision on a later date. If the accused is denied bail in the Magistrates’ Court, they can make a second application to the Magistrates’ Court if they can demonstrate that new facts and circumstances exist which should compel the Court to reconsider an application for bail. For example, the accused may have become aware of delays in the Brief of Evidence being served or may have an additional surety available.

Otherwise, a second Application for Bail can be made to the Supreme Court of Victoria, which can hear the application afresh without the need for new facts and circumstances.

If the Court Decides to Grant Bail

If any Court decides to grant bail, it will make orders in relation to the bail conditions and require the accused to sign his or her Undertaking of Bail before being released. Usually, this has to occur in the presence of a Registrar of the Court or an appropriate qualified Prison Officer. It will also have to be signed by any surety for bail. Once an accused person is granted bail, they will have to attend Court on every occasion and comply with the conditions of their bail until the criminal proceedings have concluded.

If your loved one is in custody and wishes to make an Application for Bail, you should contact our office to arrange an Initial Client Consultation to discuss the allegations and the Application. Our experienced criminal defence lawyers are industry leaders with unparalleled success in applying for bail on behalf of our clients.