What is Bail?
Bail and remand
Bail is the process whereby a person who has been arrested and charged is released from police custody back into the community whilst awaiting the next court hearing.
If bail is refused, then the arrested person is remanded in custody pending the next court hearing.
In the Magistrates’ Court it can be many months between arrest and hearing. Even longer in the higher courts. So the issue of bail is critical from the perspective of the Accused.
In deciding whether to grant bail, the police or the court must balance competing considerations. In many cases the decision can be very difficult, as it can be seen as an assessment of future risk.
Bail as a conditional freedom
If bail is granted, the Accused is released from custody, but their release is subject to conditions. The conditions are imposed to alleviate any perceived potential risks once the Accused has been released.
Common bail conditions include:
- Residing at a specified address;
- Periodic reporting to the police station;
- Not being able to leave the state and/or country; and
- Not being able to associate with witnesses or co-accused.
Implications of denial of bail
If bail is refused, the Accused is remanded in custody. However, being held in custody whilst awaiting the next court date can have serious implications. Just as the courts regard the use of prison as a ‘last resort’ in sentencing, remanding a defendant in custody should also be regarded as a last resort.
The key case law in relation to bail
- Re Asmar  VSC 487 – Relationship between show cause and unacceptable risk as a one step process
- DPP v Harika  VSC 237 – Meaning of unacceptable risk, show cause and overlap
- DPP v Ghiller  VSC 435 – Meaning of unacceptable risk, show cause
- DPP v Mokbel (No.3)  VSC 393 – Delay as exceptional circumstance
- R v Nezif  VSC 17 – combination of factors can ‘show cause’
- DPP v Tong (2000) 117 A Crim 169;  VSC 451 – no definition of exceptional circumstances
- R v Sanghera  2 VR 130 – hearsay evidence admissible in bail hearing
- Re Jack Zoudi  VSCA 298 – bail pending appeal
- Stephan Zade Abbott (1997) 97 A Crim R 19 – Combination of factors can constitute exceptional circumstances
- R v Light  VLR 152 – Common law presumption of bail
When bail can be granted
Bail can be granted at any stage of the criminal process from the point of arrest through to the trial, sentence and final appeal.