Bail hearings and evidence

5 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).

The magistrate is not bound by the strict rules of evidence.

Sections 8(a)–(e) of the Bail Act give the court power to make wide-ranging inquiries about the accused and to receive any evidence it considers credible and trustworthy.

The informant may give evidence about the circumstances of the alleged offence by the accused, including the strength of the case. Additionally, the prosecution outlines the accused’s prior criminal history and reasons why they are an unacceptable risk.

It is relatively common for an accused person to represent themselves in the early stages of these proceedings however the accused cannot be questioned about the offences with which they are charged (s 8(1) (b)). The defence may also wish to call witnesses to support their application.

A bail decision maker must consider family violence risks in every bail application, even if the Accused is not charged with family violence offences. The relevant provision is section 5AAAA of the Bail Act.
A bail decision-maker must ask the prosecutor to ascertain whether there is in force a family violence intervention order, a family violence safety notice, or a recognised domestic violence order that has been made or issued against the accused person (s 5AAAA(1)).
If the accused person is charged with a family violence offence, the bail decision-maker must consider whether, if the accused person was released on bail, there would be a risk they would commit family violence and whether the risk could be mitigated by any bail conditions, or by making a family violence intervention order (s 5AAAA(2)).
A court hearing a bail application in relation to offending related to family violence may consider previous complaints and allegations of family violence, even if charges were withdrawn or not proven. Such complaints and allegations are relevant and material to an assessment of future risk of endangerment.

Bail applicants

A further consideration in the Bail Act is the Aboriginal or Torres Strait Islander heritage of the bail applicant. In making a determination under the Bail Act, a bail decision-maker must take into account any issues that arise due to the person’s Aboriginality, including cultural background and other relevant cultural issues or obligations (Bail Act s 3A). This is in addition to the considerations outlined in section 3AAA, which are outlined in further detail below.
An Aboriginal person is defined as a person who is descended from an Aboriginal or Torres Strait Islander person and who identifies as an Aboriginal person or a Torres Strait Islander and is accepted as such by an Aboriginal or Torres Strait Island community.
These considerations are comprehensive, and section 3A should be read in its entirety when working with Aboriginal applicants. A helpful explanation of the application of the factors outlined in section 3A is found in the decision of the Honourable Justice Incerti in Re Terei [2024] VSC (‘Re Terei’). The case of HA v The Queen [2021] VSCA 64 is also a useful authority in relation to Aboriginality (see [58]–[59]).
There are specific considerations if the bail applicant is a child. The remand of a child is an option of last resort (Bail Act s 3B(1)(b)). The considerations in relation to children are set out in s 3B of the Bail Act and this provision should be read in its entirety in respect of a child applicant. A child cannot be remanded for longer than 21 days at a time (s 12(4)(5)), and importantly, a child cannot be refused bail solely on the grounds that the child does not have any, or any adequate, accommodation.
Note that further changes to the Bail Act are anticipated in 2025. These will introduce a legislative framework for the trial of electronic monitoring of accused children and young people on bail in certain circumstances.

The court admitting an accused person to bail must give the accused (and any bail guarantor) a notice setting out the bail conditions. The court must also ensure that the accused understands the conditions and the consequences of not complying with them (Bail Act s 17).
The court can also make an order forbidding the publication of any information relating to a bail application (Bail Act s 7).