Types of bail and bail conditions

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).

There are three different types of bail. These are:

releasing the accused person on their own undertaking without any other condition; or
releasing the accused person on their own undertaking with conditions about the conduct of the accused; or
releasing the accused person with a guarantee of stated value or a deposit of stated value, with or without conditions about the conduct of the accused.

Most accused people are bailed ‘on their own undertaking’. This means the only person responsible for the accused a ending court when required to do so is the accused themselves.
Sometimes the accused must deposit a sum of money with the police or the courts before being released. An accused is entitled to recover the deposit once the matter against them is determined.
Sometimes another person (called a ‘bail guarantor’) is required to deposit or ‘put up’ a security (usually a sum of money or a title to a property) to guarantee that an accused person will appear at the date and place specified in the undertaking of bail.
If the accused does not turn up at court to answer their bail or otherwise fails to comply with the undertaking they entered, the security put up is liable to be forfeited to the state. For more information, please see ‘Guarantees and deposits’ in this chapter and refer to section 9 of the Bail Act.
In considering the release of an accused on bail, the bail decision-maker must impose any conditions that reduce the likelihood that the accused may:
- commit a schedule 1 offence or schedule 2 offence; or
- otherwise endanger the safety and welfare of any other person, whether by committing an offence that has that effect or by any other means; or
- interfere with a witness or otherwise obstructing the course of justice in any matter; or
- fail to surrender into custody in accordance with the bail undertaking.
Examples are set out in the legislation – for instance, the bail decision-maker may impose a condition in order to reduce the likelihood that the accused may drive dangerously, or commit an aggravated burglary etc. (s 5AAA(1)(aa)).
The bail conditions must not be more onerous than what is required to reduce the likelihood of the above from occurring and must be reasonable having regard to the nature of the alleged offence and the circumstances of the accused (Bail Act s 5AAA(2)).
A bail decision-maker considering the release of an accused on bail must impose a condition that the accused will surrender into custody at a time and place for the hearing.
Section 5AAA(4) contains a list of common bail conditions, but the bail decision maker is not limited to these.
These include that the accused:
- report to a police station;
- live at a particular address;
- adhere to a curfew;
- surrender his or her passport;
- not attend certain places or areas;
- comply with conditions of an intervention order;
- attend bail support services;
- not contact specified people, or a class of people (e.g. witnesses or co-accused);
- not drive a motor vehicle;
- not use drugs or alcohol.
Bail conditions remain binding on an accused until the bail is varied or revoked or the charges for which the person is on bail are finally determined (s 5AAA(6)). This means that an accused is still required to comply with bail conditions even in circumstances where they have failed to answer their bail and a court has issued a warrant for their apprehension and made an order forfeiting their undertaking of bail