BAIL AND SUMMONS

This means they are released on the condition that they will appear in court at a later date to answer the charge(s). In this sense, bail is like a promise or a contract. A person on bail who does not appear when required to do so can be arrested and may be charged with a criminal offence.

When someone is charged with a very minor offence, like a traffic offence, the police usually do not use the bail process. Instead, they give the person a 'summons'. A summons is a notice, issued by the court, telling a person that they must go to court on a specified date. This happens, for instance, in most Children's Court offences.

Most people are bailed "on their own undertaking", which means that no money is required but sometimes, the accused has to deposit a sum of money with the police or the courts before being released.

Sometimes, another person will be required to deposit or "put up" a sum of money or property. Such a person is called a "surety". A surety is a person who guarantees that an accused person will appear at the date and place specified by putting up a security, usually a sum of money or a title to a property. If the accused does not turn up at court to answer the bail, the amount put up may be lost.

If you are arrested, the police must either release you or take you before a court within a reasonable time. The Bail Act 1977 (Vic) ("the Bail Act") presumes that an accused person is entitled to bail, therefore, most people charged by police receive bail. In many cases, the police or a Bail Justice, who goes to the police station, grants bail. A Bail Justice is not a judge, but someone who has been given the power to grant or refuse bail. For more serious cases, police refuse bail and the decision is made by a judge.

The application for bail can be made as soon as the accused person appears following an arrest, but timing is critical. The first application must be the best; an applicant gets other chances, but the hurdle is higher in most subsequent applications.

A person can apply for bail as many times as they like, but in order to succeed on a subsequent application they must establish that new facts or circumstances have arisen

If you are granted bail you must sign a form, usually called a bail bond. This form has written on it the date and place at which you must appear at court and any conditions which may have been imposed. Such conditions might be that you have to regularly report at a police station or not interfere with or contact any witnesses or co-accused. It is important that you comply with these conditions. Failure to abide by the conditions can mean that bail will be revoked.

Applications for bail may be made at several stages in the criminal process:

As stated earlier, the police can either grant or refuse bail. If the police refuse to grant you bail, you have the right to object to that decision. If bail is granted, you can object 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 tell you that you have a right to apply to a Bail Justice for a review of the police decision. If you want to apply to a Bail Justice in this way, the police have a duty to bring you before a Bail Justice as soon as possible.

If the police maintain their opposition to bail, it is necessary to explore the reasons for this. Sometimes opposition can be overcome with "negotiated" conditions, for example offering that the accused report daily, obtain drug rehabilitation and/or treatment or provide a substantial surety.

Bail will be refused where the accused:

The phrase "exceptional circumstances" is not defined in the Bail Act and it is decided on the particular facts of each case. It is very difficult to establish. Financial hardship and being of poor health or old age alone do not count as exceptional circumstances.

If you have been charged with any of the following offence, you must "show cause" why your detention is unjustified:

Bail will also be refused if the court thinks that there is an "unacceptable risk" the person charged would:

If you have been released on bail, you still have a duty to appear at court, to surrender yourself into custody when required and to abide by the other conditions of bail (if any). The police can arrest you without warrant if they believe on reasonable grounds that you have broken or are likely to break a condition of bail.

For more information on this subject refer to: The Law Handbook Chapter 3.3 Bail