Where the police have refused to grant bail and the Accused is brought directly to court after arrest, discussions must occur with the defence lawyer and the police prosecutor as to whether bail will be formally opposed. The first prize is always to convince the opposing side not to oppose the granting of bail.
The following general principles apply in relation to a bail application.
- In general, the standard of proof is on the balance of probabilities.
- The police informant or corroborator must be present (unless a nominal informant is appearing or it is agreed by both parties that the matter can proceed on the reading of the remand summary).
- The court can consider any evidence that appears to be relevant and can take into account hearsay evidence (s.8(e) and R v Sanghera  2 VR). The court can make such enquiries “…of and concerning the Accused as the court considers desirable” (s.8(a) of the Bail Act 1977).
- The prosecution presents its case setting out the reasons why bail is opposed, usually by calling the police informant. Defence are then provided the opportunity to cross examine any witnesses relied upon by the prosecution.
- The prosecution must also inform the court what the relevant threshold for bail is, the three thresholds are, unacceptable risk, compelling reasons (now replacing “show cause) and exceptional circumstances. To understand more about the relevant thresholds, click the above links.
- The police, usually through the police informant, will disclose to the court if the Accused has prior convictions or has previously failed to appear, as well as the circumstances of the current offending.
At a bail hearing, the guilt or otherwise of the Accused is only relevant when considering the strength of the case as this is a relevant factor to be considered in relation to bail. That said the Accused cannot be cross-examined about the alleged offending. If the Accused was to inadvertently make a confession or admission at the bail hearing this will not be admissible, per the legislation.
See for example, R v Kathleen Therese MacBain (Unreported, County Court of Victoria, Kimm J, 10 October 2000) where the trial judge admitted into evidence confessions made by the Accused at her bail hearing. Later, the Court of Appeal held the confession should not have been admitted into evidence.
If you require a bail application for yourself or a loved one, then you would be well advised to retain experienced lawyers that routinely run bail applications. Dribbin & Brown Criminal Lawyers appear at court everyday and run multiple bail applications each week. If you or a loved one need assistance call our local office number or if the enquiry is after hours, then call the after hours line on (03)86447333 to determine if we can help you.