Bail decision-makers: The courts
A person can be released on bail by a judge of the County Court or the Supreme Court, or by a magistrate of the Magistrates’ Court. The police usually take a detained person before a magistrate.
Ordinarily, an accused person’s first opportunity to apply for bail before a court occurs at the first remand and filing hearing (when charges are filed in the Magistrates’ Court in respect of indictable offences that cannot be heard in the summary jurisdiction); or at the first remand hearing (when charges are proceeding in the summary jurisdiction). In both these situations, the magistrate will ask whether the accused person wishes to make an application for bail and if so, will proceed to hear and determine a bail application, which may be opposed or unopposed by the prosecution. If bail is granted, the accused will enter a bail undertaking and will be released. If bail is refused, the accused will be remanded in custody until the next court hearing.
After the first remand hearing, a person in custody who wishes to apply for bail in the Magistrates’ Court must file an application with the court and serve a copy of the application on the prosecution and the informant (i.e. the police officer who laid the charge). If the bail application is listed to be heard before the hearing of the charges, a jail order must be obtained from the Magistrates’ Court and forwarded to the Office of Corrections (the Prisoner Movements department) to ensure that the applicant is brought to court for the hearing of their bail application.
In the Magistrates’ Court, the evidence placed before the court is usually given orally (i.e. viva voce), although it is common for letters of employment, drug/rehabilitation reports and references to be tendered on behalf of an applicant. Any document that is to be relied on should be given to the prosecution and the informant before the hearing.
An accused who has been committed to stand trial is also entitled to apply for bail at the conclusion of the committal hearing – this is so regardless of whether bail has been previously refused. Once committed to stand trial, any future bail applications must be made to the higher court.
Where a person is charged with murder, the Magistrates’ Court can only grant bail at the time of committing an accused for trial in the Supreme Court.
The Magistrates’ Court cannot grant bail where a person is charged with treason.
County and Supreme Courts
Once an accused person’s case is listed in the County Court or the Supreme Court, and the accused person wishes to apply for bail, an application and a supporting affidavit must be filed with the court and served on the prosecution and the informant. The affidavit should provide sufficient detail about the applicant’s circumstances and the reasons why 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  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 a police officer refuses bail for a child, an 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 a police officer refuses bail 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 drunkenness or offensive behaviour in public), the police may release an accused who has made a deposit (up to $50) as security for the payment of the penalty for the offence. For example, following an arrest for being drunk in a public place, police usually release or bail an accused after they have spent a few hours sobering up in police cells. This is in addition to any power to release such a person on bail.