What is bail?
The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking. is the A document signed by parties ending a court action. The party who began the action agrees to drop it, often in exchange for a payment by the other party. Also called terms of settlement. from Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. of a person charged with an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious)., on that person’s signed undertaking that they A document that sets out what a person wants to happen to their money and other property after they die. appear in An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. to answer the (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case.. This undertaking is a pledge the A person who has been charged with a crime. Also known as a defendant. makes when they sign the A form signed by a person released on bail. It sets out the promises the person has made to the court so they can be released from police control or prison. See also undertaking; surety., which entitles them to conditional freedom.
A person on bail who fails to comply with their bail conditions can be arrested. It is a criminal offence not to appear when required to do so, to breach a bail condition, or to commit an offence while on bail.
The release of an accused on bail is usually invoked for the more serious offences. For In Victoria, a child or young person under 18. See also infant. offences (e.g. traffic offences), the police usually serve a charge and A formal document issued by a court which says someone must appear in court on the date stated in the document. See also service; writ. to appear at court at a later date. This also happens frequently for Children’s Court offences (see Chapter 1.4: The Children’s Court).
The concept of bail
Bail is essentially about ensuring that a person turns up to court meet the charges levelled against them.
The more serious the charge, the stronger the prosecution’s case, and the higher the likely penalty, the higher the risk of the person not turning up to court to answer the charges.
The less serious the charge, the weaker the Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. against the accused, the lower the likely penalty, and the stronger the ties to the The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area., the more likely it is that the person will come to court to answer the charge.
Relevant to this is whether, if convicted, an accused is unlikely to be imprisoned. Or, if they are already imprisoned, whether the term of imprisonment is likely to be less than the period they would spend in custody if bail is denied.
Bail is not about totally eliminating the risk of an accused person failing to appear in court (that could only be achieved by detaining every accused person before their trial), but about reducing that risk to an acceptable level.
Key Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute.: Bail A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1977 (Vic)
The law in Victoria relating to bail is the Bail Act 1977 (Vic) (‘Bail Act’). This Act applies not only to offences charged under state law, but also to relevant Commonwealth offences by virtue of sections 68(1), 79 and 80 of the Judiciary Act 1903 (Cth).
The Bail Act contains a basic presumption that an accused person is entitled to bail. However, like most rules, there are exceptions (see ‘Grounds for refusing bail’, below) and the The obligation on one legal party to prove their case in court. In a criminal trial, this obligation is on the prosecution. The standard of proof is beyond reasonable doubt. In a civil trial, the plaintiff has the burden of proof, and they must prove their claim on the balance of probabilities. The burden of proof is also called the onus of proof. shifts depending on the nature of the exception.
Bail A change made to a legal document or Act of parliament. Acts 2017 (Vic)
After the tragic events that took place on 20 January 2017 in Bourke Street, Melbourne, the Honourable Paul Coghlan QC reviewed the Bail Act and its operation and recommended that the Victorian Government reform Victoria’s bail laws.
On 21 May 2018 and 1 July 2018, there was significant reform of the Bail Act with the commencement of the Bail Amendment (Stage One) Act 2017 (Vic) and the Bail Amendment (Stage Two) Act 2017 (Vic), respectively (collectively, the ‘Bail Amendment Acts 2017’).
The amendments inserted a purpose (s 1A) and guiding principles (s 1B) that include maximising the safety of the community and the people affected by crime to the greatest extent possible. Decisions in relation to bail must also take into account the The principle in criminal law that every person is innocent until a court finds them guilty. and the right to liberty. Also, bail decision-making must be fair, transparent and consistent, and must promote the public’s understanding of bail practices and procedures.
The Bail Amendment Acts 2017 also:
- extended the categories of offences that place an accused in a ‘reverse onus’ position for bail;
- 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.
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 An officer of the court who is responsible for the enforcement of court orders..
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, The time and place at which a court or tribunal hears the parties argue their case and makes a decision. 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.