The Law Handbook 2024

198 SECTION 3: Fines, infringements and criminal law bail should be granted. The prosecution is required to provide an affidavit in response. This is usually sworn by the informant, or if not, the affidavit includes a report prepared by the informant. Upon filing the application, the criminal registry of the County Court or Supreme Court will arrange a jail order for the applicant to be brought to court for the hearing. Irrespective of whether an accused has been committed to stand trial in the Supreme Court, the Supreme Court can, under its inherent jurisdiction, hear a bail application at any time during a criminal proceeding. However, it is extremely rare for a bail application to be made in the Supreme Court without a bail application having first been heard and refused in either the Magistrates’ Court or the County Court. Bail decision-makers: Certain police officers When a police officer arrests a person, they must either release that person or take them before a bail justice or the Magistrates’ Court within a reasonable time (see s 464A Crimes Act 1958 (Vic) (‘ Crimes Act (Vic) ’); ss 4(1), 10(1) Bail Act). If there is an unreasonable delay in taking a suspect before a court after they are arrested, the detention may be unlawful (see R v Banner [1970] VR 240). If a person is arrested and it is not practicable to bring them before a court immediately, or within a reasonable time if questioning and investigating has commenced (s 464 Crimes Act (Vic)), a police officer who is a sergeant or a higher rank, or who is in charge of a police station, must decide whether to grant bail without delay (s 10(1), (2) Bail Act). In the case of a child, a parent or guardian or an independent person must be present at a bail hearing (see ‘Role of the independent person’ in Chapter 3.5: Arrest, search, interrogation and your rights). When can the police not grant bail? A police officer cannot grant bail to an adult who is not a ‘vulnerable adult’ (as defined in s 3AAAA Bail Act) or who is an Aboriginal person (as defined in s 3) who is accused of a schedule 1 offence, except where the offence is a ‘relevant schedule 1 offence’ (s 13(5), (6)). A police officer cannot grant bail to an adult who is not a vulnerable adult or who is an Aboriginal person who is accused of a schedule 2 offence who is already on two or more counts of bail for other indictable offences, except where the offence is a ‘relevant schedule 2 offence’ (s 13A(3)). Where a police officer cannot consider bail, only a court can grant bail; a police officer must bring the person before a court as soon as practicable. When bail is refused for a child, Aboriginal person or a vulnerable adult In the case of a child, an Aboriginal person (see s 3 Bail Act) or a vulnerable adult (see s 3AAAA), if bail is refused by a police officer who is a bail decision- maker, a police officer must take the person before a court as soon as practicable if it is within ordinary court sitting hours. A police officer must advise the person that they are entitled to ask the court for bail, if they wish to do so (s 10(6)(b)). If it is outside ordinary court sitting hours, a police officer must advise the person that they are entitled to ask a bail justice for bail, if they wish to do so. If the person wishes to ask a bail justice for bail, a police officer must bring the person before a bail justice as soon as practicable. If the person does not wish to apply for bail, a police officer must take the person before a court as soon as practicable and advise them that they are entitled to ask the court for bail (s 10(6)(c)). When bail is refused for an adult who is not an Aboriginal person or a vulnerable adult In the case of an adult who is not an Aboriginal person (see s 3 Bail Act) or a vulnerable adult (see s 3AAAA), if bail is refused by a police officer who is a bail decision-maker, a police officer who is a sergeant or higher rank or who is in charge of a police station must record the reasons for refusing bail, remand the person in custody to appear before a court as soon as practicable within the following 48 hours, and advise the person that they are entitled to ask the court for bail. If the police officer considers that it is not practicable to bring the person before a court within 48 hours, a police officer must bring the person before a bail justice (see s 10AA). Other situations where the police can release an accused person For certain minor offences (e.g. relating to drunk­ enness or offensive behaviour in public), the police