How bail works

Applications for bail may be made at any stage in the criminal process, including:

• at the police station after being arrested and upon being charged;
• when an accused is first brought before a bail justice or the Magistrates’ Court;
• while an accused is waiting the charges to be heard in court;
• at the conclusion of a committal hearing in the Magistrates’ Court upon being committed to stand trial in the County Court or Supreme Court;
• after committal for trial in the County or Supreme Court while an indictable matter is pending;
• pending an appeal after conviction and sentencing; 
• following a successful appeal against conviction and before any retrial being heard.

The timing of a bail application and its preparation are critical.

If a bail decision-maker is satisfied that an accused person is seriously affected by alcohol or drugs, they may adjourn a bail hearing and remand the person for up to four hours. After four hours, if a bail decision-maker is satisfied that the person is still seriously affected by alcohol or drugs, they may adjourn the bail hearing for one more four-hour period (s 8(3)–(6)).

Under section 18 of the Bail Act, an accused who has been refused bail or had their bail revoked, and who is in custody pending the
hearing of their matter, can make another bail application to a court if at least one of the circumstances in section 18AA(1) of the Bail Act is satisfied.

The circumstances in section 18AA(1) are: 

• new facts and circumstances have arisen since the refusal or revocation of bail; or
• the applicant was unrepresented when bail was refused or revoked;
• the order refusing bail was made by a bail justice.

Note that in R v El-Refei (No 2) [2020] VSC 164 at [3]–[4], the court held that evidence of a significant unexpected delay caused by the COVID-19 pandemic may amount to a new fact or circumstance that would permit the court to hear a further application for bail.

Also note that despite a revocation of bail by the Supreme Court under section 18A, in Director of Public Prosecutions (Cth) v The Magistrates’ Court of Victoria [2010] VSC 297, Justice Pagone held that a magistrate had power to hear a fresh bail application under section 18(1).

If the previous application was made before a judge or magistrate, the further application for bail must be heard by the same judge or magistrate who determined the previous application, if reasonably practicable (s 18(4)). This threshold does not apply to fresh applications heard by the Supreme Court under its inherent jurisdiction.

An accused who has been refused bail and who makes a fresh bail application to the Supreme Court is required to give the prosecution notice, in the prescribed form, at least three days before the hearing of the further bail application (s 18AK).

The prosecution can agree to dispense with the notice requirement and the court can dispense with the notice requirement if the matter is urgent and the court can adequately determine the matter despite the lack of notice.