The Law Handbook 2024

196 SECTION 3: Fines, infringements and criminal law • replaced the ‘show cause’ test with a ‘show compelling reason’ test; • introduced a police remand power; • provided for a deferral of a bail decision if an accused is intoxicated; • made amendments recommended in the report of the Royal Commission into family violence; • prescribed that only a court can grant bail where: – an accused is required to show exceptional circumstances, or – an accused is already on two or more counts of bail, with limited exceptions. NOTE Further amendments to the Bail Act were passed in 2023, aimed at winding back some of the 2018 reforms. The amended Act is due to be in effect from 25 March 2024. Bail decision-makers A bail decision-maker is defined in the Bail Act (s 3) as someone who has the power to grant, extend, vary or revoke bail. Bail decision-makers include: • the courts; • police officers of the rank of sergeant or above, or who are in charge of a police station; • bail justices; • the sheriff. NOTE: BAIL AND COVID-19 In Victoria, the impact the COVID-19 pandemic has had on the wider criminal justice system has been significant. In the context of bail, hearing delays, more onerous custodial conditions, and the significant risk to health presented by COVID-19 form the basis of a significant number of bail applications and have been considered by courts at all levels. These cases have been incorporated in to the relevant sections of this chapter. Types of bail and bail conditions There are three different types of bail. These are: 1 release the accused person on their own undertaking without any other condition; or 2 release the accused person on their own undertaking with conditions about the conduct of the accused; or 3 release the accused person with a surety of stated value or a deposit of stated value, with or without conditions about the conduct of the accused. Own undertaking Most accused people are bailed ‘on their own undertaking’. This means the only person responsible for the accused attending court when required to do so is the accused themselves. Sometimes the accused has to deposit a sum of money with the police or the courts before being released. An accused is entitled to recover the deposit once the matter against them is determined. Surety Sometimes another person (called a ‘surety’) is required to deposit or ‘put up’ a security (usually a sum of money or a title to a property) to guarantee that an accused person will appear at the date and place specified in the bail bond. If the accused does not turn up at court to answer their bail or otherwise fails to comply with the undertaking they entered, the security put up is liable to be forfeited to the state (s 5(3) Bail Act). For more information about sureties, see ‘Sureties and deposits’, below. Bail conditions A bail decision-maker considering the release of an accused on bail must impose a condition that the accused will surrender into custody at a time and place for the hearing. Conditions about the conduct of the accused can be set at the discretion of the bail decision-maker. Section 5AAA(4) of the Bail Act contains a list of common bail conditions, but the bail decision-maker is not limited to these conditions and can impose conditions that do not appear in the list. A bail decision-maker must impose any cond­ ition(s) that reduce the likelihood of an accused: • endangering the safety and welfare of any person; • committing further offences; • interfering with a witness; • obstructing the course of justice;