An introduction to bail

6 Feb

NOTE: The law in this chapter is current as at 2 December 2024. Further changes to the bail laws are anticipated throughout 2025 (introduced by the Youth Justice Act 2024 (Vic).

Bail is the release from custody of a person charged with an offence, on that person’s signed undertaking that they will appear in court to answer the charge. This undertaking is a pledge the accused makes when they sign the undertaking of bail which entitles them to conditional freedom.
It is a criminal offence not to appear at court in accordance with that undertaking, when required to do so (Bail Act 1977 (Vic) (‘Bail Act’) s 30).
The release of an accused on bail is usually invoked for more serious offences. For minor offences (e.g. traffic offences), the police usually serve a charge and summons to appear at court at a later date. This also happens frequently for Children’s Court offences (see Chapter 1.4: The Children’s Court).
Bail is not a punishment; it serves to ensure that an accused person attends court to answer the charges, and that the community is protected.
The more serious the charge, the stronger the prosecution’s case, and the higher the likely penalty, the higher the risk of the person not turning up to court to answer the charges.
The less serious the charge, the weaker the evidence against the accused, the lower the likely penalty, and the stronger the ties to the jurisdiction, the more likely it is that the person will come to court to answer the charge.
Bail is not about eliminating the risk of an accused person failing to appear in court (that could only be achieved by detaining every accused person before their trial), but about reducing that risk to an acceptable level.
The law in Victoria relating to bail is the Bail Act. There were significant reforms to this legislation in March 2024, and further amendments to this Act came into effect on 11 September 2024. (Note that further changes are anticipated throughout 2025. You should consult the legislation to ensure you are working with the most recent version.) This Act applies not only to offences charged under state law, but also to relevant Commonwealth offences by virtue of sections 68(1), 79 and 80 of the Judiciary Act 1903 (Cth).
The Bail Act contains a basic presumption that an accused person is entitled to bail. However, like most rules, there are exceptions (see ‘Grounds for refusing bail’, below) and the burden of proof shifts depending on the nature of the exception.
The guiding principles for bail decision makers are set out in section 1B of the Bail Act. These effectively codify the balance of the sometimes-competing principles of the presumption of innocence until a finding of guilt with the protection of the community.
A bail decision-maker is defined in section 3 of the Bail Act as someone who has the power to grant, extend, vary or revoke bail.
Bail decision-makers include:
- the courts;
- police officers of the rank of sergeant or above, or who are in charge of a police station;
- bail justices; and
- the sheriff.