Bail decision-makers: The courts
A person can be released on 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. by a judge of the County 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. or the Supreme Court, or by a magistrate of the Magistrates’ Court. The police usually take a detained person before a magistrate.
Ordinarily, an A person who has been charged with a crime. Also known as a defendant. person’s first opportunity to apply for bail before a court occurs at the first remand and filing The time and place at which a court or tribunal hears the parties argue their case and makes a decision. (when charges are filed in the Magistrates’ Court in respect of indictable offences that cannot be heard in the summary 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.); or at the first remand hearing (when charges are proceeding in the summary jurisdiction). In both these situations, the magistrate A document that sets out what a person wants to happen to their money and other property after they die. 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 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.. 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 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. 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 A person who swears an affidavit stating that an offence has occurred and is named on the documents that start a criminal case in court. The informant is usually a police officer, but can also be the victim of the crime. Not to be confused with an informer. (i.e. the police officer who laid 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.). 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 Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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 A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. 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 The administrative section of a court that accepts documents filed with the court and also handles some public enquiries. 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 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. that person or take them 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’ Court within a reasonable time (see s 464A Crimes A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 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 Someone who is legally responsible for taking care of another person or their property. or an independent person must be present at a bail hearing (see ‘Role of the independent person’ in Chapter 3.5: To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court., search, The asking of questions. In criminal cases, the questioning of suspects by police. In civil proceedings, a pre-hearing process in which one party asks the other party a series of written questions, called interrogatories, which must be answered on oath. 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 A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious)., 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 In Victoria, a child or young person under 18. See also infant. 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 Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. 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.