When can bail applications be made?
Applications for 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. may be made at any stage in the criminal process, including:
- at the police station after being arrested and upon being charged;
- when an A person who has been charged with a crime. Also known as a defendant. is first brought before a An official, usually based at a police station, who is not a judge or magistrate but has the same power as judges and magistrates to grant or refuse bail to an accused person. or the Magistrates’ 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.;
- while an accused is waiting the charges to be heard in court;
- at the conclusion of a committal The time and place at which a court or tribunal hears the parties argue their case and makes a decision. 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 The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. 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 To postpone a court case, to move the hearing to another time or another day. Also referred to as ‘standing over’, as in ‘standing the matter over’ or ‘standing down’. If a case is adjourned indefinitely it can only be brought back if one of the parties applies to the court. This was formerly called adjournment sine die. 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)).
Further bail applications
Under section 18 of the Bail A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation., an accused who has been refused bail or had their bail revoked, and who is in 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. 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 Cancellation of a previous law or legal document. For example, when a new will is made, the old one is usually revoked. 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)  VSC 164 at –, the court held that Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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  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 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..
An accused who has been refused bail and who makes a fresh bail application to the Supreme Court is required to give the The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown. 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.