Bail Procedure – Where the police have refused to grant bail (or the Accused is brought directly to court after arrest) and a court is deciding bail, the bail hearing is less formal than a trial. This is because the court is not adjudicating on the guilt or innocence of the Accused. The bail decision maker is usually more interventionist in terms of asking the police and defendant questions.
The following general principles apply in such proceedings:
- In general, the standard of proof is on the balance of probabilities.
- The police informant or corroborator must be present.
- 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). This is an important provision when the “unacceptable risk” situation in section 4E of the Bail Act 1977 is considered. 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 first, setting out the reasons why bail is opposed. Evidence on oath can then be cross-examined by the defence.
- The police 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 offence.
At a bail hearing, the guilt or otherwise of the Accused is not being considered and so it is important that the Accused not be unfairly prejudiced by anything he or she says at the bail hearing.
For this reason, the Accused cannot be cross-examined about the alleged offence. If the Accused was to inadvertently make a confession or admission at the bail hearing, it is generally accepted that this should not be admissible evidence if they later decide to plead not guilty.
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.