What is bail?
Bail is the release from custody of a person charged with an offence, on that person’s signed undertaking that they will appear in court to answer the charge. This undertaking is a pledge the accused makes when they sign the bail bond, 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 minor offences (e.g. traffic offences), the police usually serve a charge and summons 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 evidence against the accused, the lower the likely penalty, and the stronger the ties to the jurisdiction, 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 legislation: Bail Act 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 burden of proof shifts depending on the nature of the exception.
Bail Amendment 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 presumption of innocence 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 sheriff.
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.