In Victoria, 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, the arrested person is remanded in custody until the matter is finalised or until a further application for bail is successful.
In the Magistrates’ Court, it can be many months between arrest and hearing, and even longer in the higher courts. So, the issue of bail is an important one.
In deciding whether to grant bail, the police, the bail justice, or a member of the judiciary presiding in court must balance competing considerations. In many cases, the decision can be very difficult, as it involves an assessment of future risk.
Possible Conditions of Bail
If bail is granted, the accused person is released from custody, but their release is usually subject to conditions. The conditions are imposed to alleviate any perceived risks once the accused has been released.
Common conditions include:
- Having to reside at a specified address;
- Being subject to a nightly curfew;
- 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
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 an accused in custody should also be regarded as a last resort. It is at this point a further application should be considered, either before the same member of the judiciary by establishing ‘new facts and circumstances’ or by way of a fresh application in the Supreme Court.
The key case law
- DPP v Harika [2001] VSC 237 – Meaning of unacceptable risk, show cause and overlap
- DPP v Ghiller [2002] VSC 435 – Meaning of unacceptable risk, show cause
- DPP v Mokbel (No.3) [2002] VSC 393 – Delay as exceptional circumstance
- R v Nezif [2005] VSC 17 – combination of factors can ‘show cause’
- DPP v Tong (2000) 117 A Crim 169; [2000] VSC 451 – no definition of exceptional circumstances
- R v Sanghera [1983] 2 VR 130 – hearsay evidence admissible in bail hearing
- Re Jack Zoudi [2006] VSCA 298 – bail pending appeal
- Stephan Zade Abbott (1997) 97 A Crim R 19 – Combination of factors can constitute exceptional circumstances
- R v Light [1954] 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.
