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Level 11, 456 Lonsdale Street, Melbourne,
Victoria 3000
45 Gheringhap Street, Geelong,
Victoria 3220
62 Kepler Street, Warrnambool,
Victoria 3280
Articles
May 13, 2024

A Guide to the Bail Process in Victoria

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If you are facing serious criminal charges, the bail process is one of the first measures that you will encounter. In Victoria, bail is common practice and the legal system has established a framework for granting bail to individuals charged with a crime. 

As the circumstances of each case and each individual differ significantly, the application process, conditions, and considerations will change accordingly. Of course, a seasoned criminal lawyer will also be able to provide expert guidance throughout all stages of the bail process. 

We are a leading law firm in Melbourne that has defended clients for a large variety of different criminal charges. In this comprehensive guide, we will explore the intricacies of bail, covering everything from the application process to the considerations made by the court.

Bail Overview

Bail is a fundamental component of the legal system. At its core, the bail process gives individuals charged with a crime the opportunity to remain in the community until their court case commences. The alternative, which is being held in custody or remand, underscores the significance of bail as a means to balance individual rights and public safety.

The type of offence you are charged with will determine whether bail can be granted by the police station or whether the matter needs to proceed to court. If the Magistrates Court is not available, you may be held in custody by a senior police officer.

As noted by the Magistrates Court, “There are different requirements in relation to bail for any accused person who is an Aboriginal person, a vulnerable adult or a person under the age 18.” Source: Magistrates Court of Victoria

If bail is refused by another court, the case may proceed to the Supreme Court, where it is then heard by The Criminal Division. This Division is the governing body that decides on applications for bail, variation of bail, revocation of bail and appeals of bail decisions.

The Bail Act 1977

Recently amended on the 25th of March, 2024, the Bail Act 1977 (Vic) (‘Bail Act’) applies to offences legislated under both state law and Commonwealth offences according to sections 68(1), 79, and 80 of the Judiciary Act 1903 (Cth). 

As listed in the recent authorised documentation of the Act, the guiding principles of Bail Act 1977 are;

  • (a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and 
  • (b) taking account of the presumption of innocence and the right to liberty; and 
  • (c) promoting fairness, transparency and consistency in bail decision making; and 
  • (d) promoting public understanding of bail practices and procedures. 

Source: Bail Act 1977 (March 25, 2024).

The Bail Application Process

The bail application process is not taken lightly and understanding its various aspects and rules is crucial for anyone that is facing criminal charges. Overall, the bail application process allows the accused to apply for bail from the time of being charged until their court case begins. Even if a confession has been made, the legal principle in Victoria maintains the presumption of innocence until proven guilty in court.

A successful bail application is also dependent on the nature of the charges laid. This includes cases where the court determines that the individual accused poses an unacceptable risk to others. There are also specific rules and guidelines that must be followed in order to lodge a bail affidavit, including the correcting method of filing. Here, you must consult with a criminal lawyer.

Additional Information:

  • (a) Confession Doesn’t Bar Bail: Even if a confession is made, individuals can still apply for and be granted bail.
  • (b) Presumption of Innocence: Victoria’s legal principle asserts the presumption of innocence until proven guilty in court.

For further information about the application process, please contact your nearest Gallant Law office.

Bail Rules and Conditions

If and when the accused is granted bail, they must adhere to a strict set of rules and conditions imposed by the court. These conditions range from attending court proceedings on the scheduled dates to not contacting witnesses, and leaving the jurisdiction in which they have been charged. 

These measures are designed to ensure the safety of victims and witnesses, as well as to prevent potential interference with the legal process. The violation of these conditions can result in the revocation of bail and a return to custody.

Additional Information:

  • (a) Safety Measures: Conditions aim to keep victims and witnesses safe.
  • (b) Revocation: Violation of conditions can lead to the revocation of bail.
  • (c) Breaches: In Victoria, breaches to bail conditions can result in a period of 3-12 months imprisonment.

Conditions and Types

Set out by the Court, bail conditions lay out a strict set of rules that must be followed in the period after the individual’s release. Own undertaking, surety, and deposit are different types of bail with distinct implications.

From reporting to a police station and adhering to curfews to surrendering passports, these conditions are often all-encompassing and comprehensive. If you need further assistance to understand the various types of bail, we recommend reaching out to a law firm as soon as possible. 

If granted bail, you will be obligated to comply with conditions set by the Court. This may include:

  • (a) Mandatory residence at a specified address
  • (b) Surrendering your passport.
  • (c) Prohibition from leaving the state and/or country.
  • (d) Reporting to a police station on a periodic basis
  • (e) Restricted from visiting specified areas
  • (f) Prohibition from associating with certain individuals.
  • (g) Adherence to a nightly curfew.

Facing charges and need an experienced criminal lawyer in Melbourne, Geelong or across Victoria? Contact Gallant Law on 03 9070 9885 now for a consultation.

Bail Considerations for First Nations People

As amended by the Bail Amendment Act 2023, section 3A of the Bail Act 1977 includes specific considerations for Aboriginal people. Inclusions of these specific considerations were made in order to 

  1. Recognise the overrepresentation of Aboriginal peoples on remand and the unique disadvantages they face when dealing with the criminal legal system.
  2. Promote Aboriginal cultural rights as protected by the Human Rights Charter, including rights to identity, culture, and kinship ties.

Section 3A of the Bail Act includes a ‘non-exhaustive’ list of bail considerations that decision makers “must take into account” for the determination of bail as it involves an Aboriginal person. Within Section 3A, there are also a set of guidelines outlining how a bail decision maker can apply these considerations.
At Gallant Law, we strongly believe in protecting and advocating for our aboriginal clients’ culture and identity through informed legal representation, including any matters related to bail processes in Victoria. Please refer to our recent article for further information.

Remand

In some circumstances, bail will not be granted. When this occurs, the accused may find themselves in remand, where they are held in a remand prison that is separate from other convicted offenders. Factors such as unacceptable risk, not applying for bail, refusal by the police or court, or an inability to provide a required deposit or surety can all lead to remand. This is where enlisting the services of an experienced criminal lawyer is critical.

We should also note that time spent in remand may count towards an eventual sentence if the accused is convicted.

Additional Information:

  • (a) Remand Considerations: Reasons for remand include refusal of bail and inability to provide a deposit or surety.
  • (b) Unacceptable Risk: The court may determine that the accused poses an unacceptable risk and therefore must be put in remand.
  • (c) Sentence Consideration: Time spent in remand may count towards the eventual sentence if the accused is convicted.

Court Considerations

Before granting bail, the court will consider a wide array of different factors pertaining to the case and the individual accused. These include the risk of the accused not appearing in court, the potential for committing further offences, endangering public safety, interfering with witnesses, or obstructing the course of justice. This decision-making process is designed to protect the safety of the community, as well as witnesses and victims.

Additional Information:

  • (a) Risk Assessment: The court assesses the risk of non-appearance, committing offences, endangering public safety, and interfering with witnesses.
  • (b) Balanced Decision: The court’s nuanced approach seeks to balance individual rights and public safety.

Need expert legal advice? Contact us today to access the best criminal lawyer services in Melbourne, Geelong, and Warrnambool and across the country.

Victim and Witness Involvement

The legal system in Victoria acknowledges the importance of victim and witness concerns in the bail process. Victims and witnesses have the opportunity to express worries about the accused person being released on bail. The court takes these concerns into consideration, particularly in regards to potential threats, harm, or intimidation.

When bail applications are considered, the safety of victims and witnesses is paramount. Various measures, including reporting concerns to the police, reaching out to helplines such as the Victims of Crime Helpline, and taking practical steps to enhance personal safety, are encouraged on the part of witnesses and victims. These steps empower individuals to actively participate in their own protection.

Additional Information:

  • (a) Victim Participation: Victims and witnesses can express concerns about the accused being released on bail.
  • (b) Threat Assessment: The court considers potential threats, harm, or intimidation in its decision-making process.
  • (c) Helpline Support: Victims can seek support and advice from the Victims of Crime Helpline.

Bail Application Refusals

Bail application refusals are not the end of the road. Individuals have the opportunity to oppose the decision and make a second application under specific circumstances. Strong legal representation and the presentation of new facts and circumstances can all influence the success of a subsequent bail application.

Additional Information:

  • (a) Second Application: Individuals can make a second application if the first is refused.
  • (b) Influence Factors: Legal representation and new facts can influence the success of subsequent bail applications.

The Importance of Legal Assistance

Navigating the bail process requires legal expertise, especially in complex cases with nuanced circumstances. Whether the accused is seeking bail or making further applications, accessing the right legal support can make a significant difference to the outcome. This includes following the guidelines and due process set out by the Victorian and Federal legal systems respectively.

Seasoned criminal lawyers, like Gallant Law, can provide you with expert advice, guidance, and representation throughout all stages of the bail application process. 

Additional Information:

  • (a) Expert Legal Support: Specialised lawyers provide guidance and representation in bail matters.
  • (b) Protection of Interests: Legal assistance is crucial for protecting one’s legal interests during the bail application process.

Speak with a Criminal Lawyer

As with any aspect of the Victorian legal system, bail can be a complex process with various stipulations, conditions, and guidelines. However, there are seasoned legal professionals available to help you navigate this process with greater clarity.

Gallant Law is one of Australia’s premier criminal defence firms. Whether you need the assistance of a criminal lawyer in Melbourne ,Geelong, or across the country, we can guide you through each step of the bail application process and work towards securing a favourable outcome. From the start, we ensure that the risks and outcomes are clearly explained, while providing a compassionate, client-centric approach.

To receive a free consultation, contact us today on 03 9070 9885.

Disclaimer: Legal Information and Advice
The information provided on this blog is for general informational purposes only and should not be construed as legal advice. The content is not intended to create, and receipt of it does not constitute, a solicitor-client relationship. Readers should not act upon this information without seeking professional legal counsel.

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