Applying for bail

31 Jan

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).

Applications for bail may be made at any stage in the criminal process, including:
- at the police station after being arrested and upon being charged;
- when an accused is first brought before a bail justice or the Magistrates’ Court;
- while an accused is waiting the charges to be heard in court;
- at the conclusion of a committal hearing in the Magistrates’ Court upon being committed to stand trial in the County Court or Supreme Court;
- after committal for trial in the County or Supreme Court while an indictable matter is pending;
- pending an appeal after conviction and sentencing;
- following a successful appeal against conviction and before any retrial being heard.
The timing of a bail application and its preparation are critical.
If a bail decision-maker is satisfied that an accused person is seriously affected by alcohol or drugs, they may adjourn a bail hearing and remand the person for up to four hours. After four hours, if a bail decision-maker is satisfied that the person is still seriously affected by alcohol or drugs, they may adjourn the bail hearing for one more four-hour period (ss 8(3)–(6)).
The Court must not remand an accused in custody for a period of more than eight clear days unless both the accused and the informant consent (Magistrates’ Court Act 1989 (Vic) s 82(1)).
Further applications for bail are dealt with in Part 3 of the Bail Act.
If the accused is refused bail, they may re-apply for bail on a second occasion as a matter of right. As a result of amendments to the Bail Act made in March 2024, the accused no longer must demonstrate new facts and circumstances to be eligible to re-apply for a second time.
However, any applications beyond this cannot be heard unless the applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail (Bail Act s 18AA(1)(b)).
Ordinarily any subsequent bail applications should proceed before the same magistrate who initially refused bail, where it is reasonably practicable to do so (s 18(4)).
An accused who has been refused bail and who makes a fresh bail application to the Supreme Court is required to give the prosecution notice, in the prescribed form, at least three days before the hearing of the further bail application (s 18AK).
The prosecution can agree to dispense with the notice requirement and the court can dispense with the notice requirement if the matter is urgent and the court can adequately determine the matter despite the lack of notice.