Things to consider before a bail hearing

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 following matters are some of the things should be considered before a bail application:

What are the charges (is this also a filing hearing)?
Has the applicant been interviewed / did they make any admissions?
Does the applicant intend to plead guilty at the earliest possible stage?
What is the bail test for the applicant?
Is there strong evidence to support the charges (or is it too early in the investigation to accurately assess this)?
Is there any outstanding evidence that may cause an inordinate delay (e.g. DNA, ballistics, drug analysis, telephone downloads, additional witness statements)?
What is the prosecution’s attitude to bail?
What is the complainant’s attitude towards bail?
Does the applicant have relevant prior convictions?
Does the applicant have a history of non-compliance with previous court orders? Has the applicant previously failed to answer their bail?
If there are co-offenders, have they been granted bail? (Note that parity does not apply in the same way to bail as it does to sentencing.)
Does the prosecution seek the cooperation of the applicant to assist in its case against other offenders?
Delay – is there a risk that an accused would have served any likely sentence (or would be looking at a non-custodial sentence) if bail is not granted?
Is the applicant particularly vulnerable due to their age, disability, health, cultural and linguistic diversity status or for any other reason?
If granted bail, what conditions could be proposed to ameliorate any alleged unacceptable risk to the community, such as stable accommodation, treatment, residential rehabilitation, bail support program?
If the alleged offending involves family violence allegations, what conditions could mitigate risks?

If bail is opposed by the police, it is necessary to explore the reasons for this. Sometimes, opposition can be overcome with negotiated conditions, which may address police concerns about risks.
For example, offering that the accused report daily, attend drug rehabilitation and/or treatment, adhere to a curfew or provide a substantial guarantee (see ‘Guarantees and deposits’, below). These matters should be discussed with the prosecution before the bail hearing. Ultimately, the decision of whether to grant bail is a matter for the magistrate, even in circumstances where the prosecution does not oppose bail.