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, then 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. Even longer in the higher courts. So the issue of bail is an important one.
In deciding whether to grant bail, either 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 is released from custody, but their release is usually subject to conditions. The conditions are imposed to alleviate any perceived potential risks once the Accused has been released.
Common conditions include:
Implications of denial
If 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. 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
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.