Granting, extending, varying and revoking bail
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).
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A person can be released on bail by a judge of the County Court or the Supreme Court, or by a magistrate of the Magistrates’ Court. The police usually take a detained person before a magistrate.
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Ordinarily, an accused person’s first opportunity to apply for bail before a court occurs at the first remand and filing hearing (when charges are filed in the Magistrates’ Court in respect of indictable offences that cannot be heard in the summary jurisdiction); or at the first remand hearing (when charges are proceeding in the summary jurisdiction).
The prosecution may oppose (or not oppose) the application for bail. The person applying for bail is called the applicant.
If bail is granted, the accused will enter an undertaking of bail and will be released, often with a number of conditions. If bail is refused, the accused will be remanded in custody until the next court hearing.
If a person in custody wishes to apply for bail in the Magistrates’ Court after their first remand hearing, they must file an application with the court and serve a copy of the application on the prosecution and the informant (i.e. the police officer who laid the charge). If the bail application is listed to be heard before the hearing of the charges, a jail order must be obtained from the Magistrates’ Court and forwarded to the governor of the prison where the applicant is being held in custody. The jail order is what permits the movement of the prisoner to the court for the purpose of the bail application. The applicant can either appear online via an audio visual link or be brought to court to appear in person.
In the Magistrates’ Court, the evidence placed before the court is usually given orally (i.e. viva voce). It is common for letters of employment, drug/rehabilitation reports and references to be tendered on behalf of an applicant. The magistrate may also wish to hear evidence from any witness who is supporting the applicant. Any document that is to be relied on should be given to the prosecution and the informant before the hearing.
An accused who has been commi ed to stand trial is also entitled to apply for bail at the conclusion of the commi al hearing – this is so regardless of whether bail has been previously refused. Once commi ed to stand trial, any future bail applications must be made to the higher court.
Where a person is charged with murder, the Magistrates’ Court can only grant bail at the time of committing an accused for trial in the Supreme Court (Bail Act s 13(2)).
The Magistrates’ Court cannot grant bail where a person is charged with treason.
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Once an accused person’s case is listed in the County Court or the Supreme Court, and the accused person wishes to apply for bail, an application and a supporting affidavit must be filed with the court and served on the prosecution and the informant. The affidavit should provide sufficient detail about the applicant’s circumstances and the reasons why bail should be granted. The prosecution is required to provide an affidavit in response. This is usually sworn by the informant, or if not, the affidavit includes a report prepared by the informant.
Upon filing the application, the criminal registry of the County Court or Supreme Court will arrange a jail order for the applicant to be brought to court for the hearing.
Irrespective of whether an accused has been committed to stand trial in the Supreme Court, the Supreme Court can, under its inherent jurisdiction, hear a bail application at any time during a criminal proceeding.
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When a police officer arrests a person, they must either release that person or take them before a bail justice or the Magistrates’ Court within a reasonable time (see Crimes Act (Vic) s 464A; Bail Act ss 4(1), 10(1)). If a person is arrested and it is not practicable to bring them before a court immediately, or within a reasonable time if questioning and investigating has commenced (Crimes Act (Vic) s 464), a police officer who is a sergeant or a higher rank, or who is in charge of a police station, must decide whether to grant bail without delay (Bail Act ss 10(1), (2)).
In the case of a child, a parent or guardian or an independent person must be present at a bail hearing (see ‘Role of the independent person’ in Chapter 3.5: Arrest, search, interrogation and your rights).
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Unless the person is a child (‘child’ is defined in section 3 of the Bail Act), a vulnerable adult (‘vulnerable adult’ is defined in section 3AAAA) or an Aboriginal person (‘Aboriginal person’ is defined in section 3), only a court can grant bail to a person:
accused of a schedule 1 offence; or
in any situation where the exceptional circumstances test applies (see below for further explanation of this test); or
where the person is charged with a schedule 2 offence and already on two or more undertakings of bail in relation to other indictable offences.
There are some other rules that are relevant to terrorism and foreign incursion offences (see Bail Act ss 13, 13AA).
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In the case of a child, an Aboriginal person or a vulnerable adult, if bail is refused by a police officer who is a bail decision-maker, a police officer must take the person before a court as soon as practicable if it is within ordinary court sitting hours. A police officer must advise the person that they are entitled to ask the court for bail, if they wish to do so (s 10(6)(b)).
If it is outside ordinary court sitting hours, a police officer must advise the person that they are entitled to ask a bail justice for bail, if they wish to do so. If the person wishes to ask a bail justice for bail, a police officer must bring the person before a bail justice as soon as practicable.
If the person does not wish to apply for bail, a police officer must take the person before a court as soon as practicable and advise them that they are entitled to ask the court for bail (s 10(6)(c)).
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In the case of an adult who is not an Aboriginal person (see Bail Act s 3) or a vulnerable adult (see s 3AAAA), if bail is refused by a police officer who is a bail decision-maker, a police officer who is a sergeant or higher rank or who is in charge of a police station must record the reasons for refusing bail, remand the person in custody to appear before a court as soon as practicable within the following 48 hours, and advise the person that they are entitled to ask the court for bail. If the police officer considers that it is not practicable to bring the person before a court within 48 hours, a police officer must bring the person before a bail justice (see s 10AA).
Granting, extending, varying and revoking bail
Chapter: 3.6: How bail works
Contributor: Carolyn Howe, Magistrate, Magistrates’ Court of Victoria, and Natalie Heynes, Magistrate, Magistrates’ Court of Victoria
Current as of: 2 December 2024
Law Handbook Page: 177
Next Section: Applying for bail
