Bail can be granted by a police sergeant, a bail justice, a magistrate or a judge of the County Court or the Supreme Court. Bail may be opposed by the police and if granted conditions may be attached to the bail order.
When police arrest a person they must either release that person or take them before a bail justice or the Magistrates’ Court within a reasonable time (see s 464A Crimes Act 1958 (Vic) (“Crimes Act (Vic)”); ss 4(1), 10(1) Bail Act).
If there is an unreasonable delay in taking a suspect before a court after the arrest, the detention may be unlawful (see R v Banner  VR 240).
If it is not practicable to bring an arrested person before a court immediately after that person has been taken into custody, a police officer – of the rank of sergeant or above, or the officer in charge of a police station – must inquire into the case and may grant bail.
If it is not practicable to bring the person arrested before a court within 24 hours, the police cannot refuse to release the accused on bail unless they consider that one of the grounds for refusing bail applies. If there are no grounds for refusing bail, the accused has a right to be granted bail (s 4(1)(a)). The criteria set out in “Grounds for refusal of bail” also apply to the police in this circumstance.
As stated earlier, the police may grant or refuse bail. An accused person can object to the refusal to grant bail or, if bail is granted, to the amount of money fixed for bail or to any conditions the police attach to the bail; for example, daily reporting conditions at a police station. In either case, the police must orally advise the accused of their right to apply to a bail justice for a review of the police decision, or they must give the accused a written statement detailing this right (s 10(2)). If the accused wants to apply to a bail justice in this way, the police have a duty to bring the person before the bail justice as soon as practicable.
For certain minor offences (e.g. relating to drunkenness or offensive behaviour in public), the police may release an accused who has made a deposit (up to $50) as security for the payment of the penalty for the offence. For example, following an arrest for being drunk in a public place, police usually release or bail an accused after they have spent a few hours sobering up in police cells. This is in addition to any power to release such a person on bail (s 11).
Most people charged by police receive bail. For more serious cases, police refuse bail and the decision whether someone is admitted to bail is made by a magistrate or a judge.
A person can be released on bail by a judge of the County Court or the Supreme Court, or by a bail justice or a magistrate. The police will usually take a detained person before a bail justice or a magistrate.
Ordinarily, an accused person’s first opportunity to apply for bail before a court occurs at a filing hearing (when charges are filed in the Magistrates’ Court in respect of indictable offences); or at the first scheduled “mention” of indictable charges that are proceeding by way of summary jurisdiction. In relation to either of these situations, the magistrate will enquire whether the accused person is to be remanded in custody until a further hearing date or is to proceed with either a contested or un-opposed application for bail.
A person in custody who wishes to apply for bail in the Magistrates’ Court must file an application with the court and serve a copy of the application on the prosecution and the informant (the police officer who laid the charge). If the bail application is listed to be heard before the charges hearing, a jail order must be obtained from the Magistrates’ Court and forwarded to the Office of Corrections (the Prisoner Movements department) to ensure that the applicant is brought to court for the hearing of their bail application.
In the Magistrates’ Court, the material placed before the court is usually given orally (i.e. viva voce), although it is common for letters of employment, drug/rehabilitation reports and references to be tendered on behalf of an applicant. Any document that is to be relied upon should be provided to the prosecution and the informant prior to the hearing.
At the conclusion of a committal hearing, an accused who has been committed to stand trial is also entitled to make an application for bail – regardless of how many previous applications they have already made. Once committed to stand trial, any future bail applications must be made to the higher court. Until that stage is reached, the Magistrates’ Court can still exercise jurisdiction under the Bail Act.
Once an accused person’s case is listed in the County Court or the Supreme Court, and they wish 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 is justified. The prosecution are 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 the filing of the application, the criminal registry of the County or Supreme Court will arrange a jail order for the applicant to be brought to court for the hearing. This cannot be done by videolink; the applicant must appear in person.
Irrespective of whether an accused has been committed to stand trial in the Supreme Court, this court can hear a bail application at any time during the course of a case through the criminal justice system (this is because the Supreme Court has “inherent jurisdiction”). For example, if a case is in the preliminary stages in the Magistrates’ Court, or just before trial in the County Court, the Supreme Court can determine an application for bail.
An important issue for an applicant to consider when making an application to the Supreme Court is whether the application is premature; if bail is refused, future applications to the Magistrates’ Court or County Court may be rendered futile.