Bail is a necessary feature of the Victorian justice system. Without bail, people would be held in custody while they await their court hearing. This would mean that some people are held in custody for months or years, yet are ultimately proved innocent. It would also cripple Victoria’s prison system.
WHAT IS BAIL
An undertaking of bail is a promise by the person to attend court on a future date and to abide by any conditions imposed on them in the meantime. Commonly imposed conditions include reporting to a police station on set days, avoiding certain places or people, and surrendering any passports held.
Failure to comply with any condition of bail is a criminal offence and can be punished by up to three months imprisonment. (Although since 2016 this applies only to adults).
WHEN WILL BAIL BE GRANTED
If a person with a history of breaching bail or using or threatening violence is charged with certain offences involving serious violence, drug trafficking, stalking, or breaching an intervention order they must not be granted bail unless they can convince the court that it is not justified to keep them in prison.*
If a person is charged with:
- Trafficking or cultivation or commercial or large commercial quantity of illegal drugs (including conspiring to do so)
- Certain terrorism-related offences*
they must not be granted bail unless they can convince the court that:
- There are exceptional circumstances that justify them being released; and
- Releasing the person will not give rise to an “unacceptable risk”.
In any other situation the law says that bail must be granted unless doing so will give rise to an “unacceptable risk”.
*For a comprehensive list of the relevant offences refer to sections 4(2) and 4(4) and of the Bail Act 1977 or call our office to speak with a solicitor.
WHO GRANTS BAIL?
The initial decision regarding whether to grant someone bail lies with the police.
When the police charge someone with a criminal offence they then have to decide what restrictions, if any, should be placed on that person while they wait for their day in court.
If the person is charged with a minor criminal offence the police will usually issue a summons. A summons is a document that directs the person to attend court on a specific date. No other restrictions are imposed.
If the police think the charges are too serious to issue a summons but not serious enough to require the person to be kept in custody they might decide to release the person only if he or she signs an undertaking of bail.
If the police think the charges are too serious to grant bail they will refuse bail and hold the person in custody. If the police refuse to grant bail they must take the person to court so that their request for bail can be heard by a Magistrate.
AFTER HOURS BAIL
If the police refuse to grant bail when the court is closed they must allow the person to have their request for bail heard before a bail justice. The bail justice will come to the police station and hear the reasons for and against granting bail. They are required to consider the same matters as a Magistrate would.
If the bail justice agrees to grant bail the person is released from custody and must attend court on a later date.
If the bail justice refuses to grant bail the person will stay in custody until the court reopens, when they can make an application for bail before the court.
Following the Bourke Street tragedy the Government has flagged plans to establish a night court. Under the plan after hours bail applications for violent offenders will be heard by a Magistrate instead of a bail justice.
CAN ANYONE BE A BAIL JUSTICE?
No. Although Bail Justices don’t need a law degree they do have to complete some legal training and meet specified criteria. You can read the requirements here:
We encourage our clients and their family and friends to save our number in their phone so that you can reach us whenever you need to. Our after hours numbers are 1300 616 183 and 0401 564 044.
For more information about your rights and the law click here to see our other fact sheets.