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Making an application for bail

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

  • at the police station after arrest and upon being charged;
  • when an accused is brought before a bail justice or a Magistrates’ Court pending the hearing of the charge;
  • at the conclusion of a committal hearing in the Magistrates’ Court upon being committed to stand trial in the County or Supreme Court;
  • in the County or Supreme Court in which an indictable matter is pending;
  • pending an appeal after conviction and sentencing; and
  • following a successful appeal against conviction and prior to any retrial being heard.

Timing of the bail application and its preparation is critical.

An accused who has been refused bail and is in custody pending the hearing of the charge may make further applications, however, a court must not hear a further application unless:

  • new facts and circumstances have arisen since the refusal; or
  • the applicant was unrepresented when bail was refused; or
  • the order refusing bail was made by a bail justice (s 18AA(1)(a) Bail Act).

This hurdle does not apply to fresh applications under inherent jurisdiction.

If the Bail Amendment Act 2013 (Vic) is enacted, an accused who has been refused bail will be required to give the prosecution notice, in a prescribed form, at least three days before the hearing of the further bail application (s 18AK). The prosecution will be able to agree to dispense with the notice requirement. The court will be able dispense with the notice requirement if the matter is urgent and the can adequately determine the matter despite the lack of notice. The further application for bail will be required to be heard by the same judge or magistrate who determined the previous application, if reasonably practicable (s 18(4)).

It is advisable to consider the following matters before the hearing of the application for bail.

  1. What are the charges? When were they laid? How stale are they?
  2. Is there a presumption in favour of bail or is there an onus that must be discharged by the applicant?
  3. What is the evidence said to support the charge? Is the applicant a principal offender, or are they said to be aiding or abetting the principal offender? Is it a strong case, a weak case, or is it too early to tell because the police have not yet completed their enquiries? Does a case rely on the statements of a co-accused? Is the co-accused indemnified in relation to the charges?
  4. How far advanced are the police in readiness for the hearing of the charges? Are there listening device tapes or telephone intercepts? How many hours of tapes are there? Are the transcripts prepared? If not, how long will it take to prepare them?
  5. Has the applicant participated in a record of interview or made any admissions? Has the applicant consented to an identification parade and already participated? What was the result? Have any forensic tests been sought or conducted (DNA, drug analysis, fingerprints)? What do the results show or fail to establish? Is there a lengthy delay anticipated in relation to the provision of forensic analysis? Are such results pivotal to the strength of the case against the accused?
  6. Does the applicant know yet how they will plead? Is this issue premature because the strength of the case is as yet unknown? Will the position be reviewed depending on what emerges at the bail hearing?
  7. What is the Crown’s attitude to bail? If there is a “victim”, what is their attitude?
  8. Has the applicant got prior convictions? If so, what are they? How long ago?
  9. Has the applicant ever been on bail before? If so, did they honour the conditions and answer bail? If not, why not? Why will it be different this time?
  10. Are there co-offenders? If so, were any of them granted bail? With what conditions? If not, why not? Are there similarities or differences between this case and theirs?
  11. Does the prosecution seek the cooperation of the applicant to assist in its proofs against other offenders?
  12. When are the charges likely to be heard? If there is to be a committal, how long will it take (how many witnesses, how many pages in the hand-up brief, how many days will the committal occupy)? When is that hearing likely to be (earliest date, latest date)? Assuming the applicant is to be committed to stand trial, how long will the trial take? What is the likely trial date (earliest date, latest date)? Are funding issues likely to delay either hearing? Calculate the dates in terms of time from now until each such event (e.g. three months until material served; two months to a committal mention; further six months to committal; further 11 months at the earliest to trial; totals at least 22 months – almost two years in custody if bail is refused). This is relevant to the issue of delay.
  13. Are there any matters vital to the preparation of the defence that can only or best be achieved on bail (e.g. inspection of documents, gathering of evidence)?
  14. How is the applicant coping in custody? (Were they assaulted? Where are they? Is their health adversely affected?) What are the conditions of confinement? Are they able to access appropriate drug rehabilitation or medical etc., treatment on remand?
  15. Factors personal to the accused (age, background, marital status, dependants, where they will be living if granted bail, employment, ties to the jurisdiction, responsibility for the care of others, health, etc.) to demonstrate the likelihood of answering bail.
  16. What factors are relevant to any conditions of bail? Who are the proposed sureties? (Obtain instructions about their appropriateness and whether they have prior convictions.) How much is the amount of the surety? What are the surety’s passport details? Does the surety have connections to any prosecution witnesses?
  17. How will the applicant prove each of the above factors? (For example, if relying on ill health, get a medical report and exhibit to an affidavit.)
  18. Is this the first application for bail in this matter? If not, where and when was the earlier application made? Was the applicant represented last time? If so, what was the reason for the refusal of bail? What has changed since then?
  19. Who will hear the application? Has a co-accused already applied for bail before a particular magistrate or judge? Does parity apply?
  20. Have any documents been filed with the court yet? If so, what are they? Are any further documents required?
  21. What is the “fall-back” plan if this application fails?
  22. What bail programs are available through the court to assist the applicant with housing, drug rehabilitation, supervision by way of a court-run program, etc.?

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, adhere to a curfew or provide a substantial surety (see “Sureties”, below). These matters should be discussed with the prosecution before the commencement of the hearing.

A further consideration recently introduced into the Bail Act is the Aboriginality of the applicant. In making a determination under the Bail Act, a court must take into account any issues that arise due to the persons Aboriginality, including cultural background and other relevant cultural issues or obligations (s 3A). An Aboriginal person is defined as a person descended from an Aborigine or Torres Strait Islander and who identifies as an Aborigine or Torres Strait Islander and is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community.

Bail applications are won or lost on the facts that arise in the bail hearing. As bail is essentially about ensuring that a person turns up to meet charges levelled against them, the facts must address that issue. The more serious the charge, the stronger the case and the higher the likely penalty, the higher the risk of the person not turning up to court to answer the charges. The less serious the charge, the weaker the evidence, the lower the penalty and the stronger the ties to the jurisdiction, the more likely it is that the person will come to court to answer the charge. Relevant to this is whether, if convicted, an accused is unlikely to be imprisoned, or if imprisoned, the term is likely to be less than the period they would otherwise spend in custody if bail is denied.

Bail is not about the total elimination of the risk of failing to appear (that could only be met by every accused person being detained in custody pending trial), but about reducing that risk to an acceptable level.

The Evidence Act 2008 (Vic) applies to the conduct of bail hearings (s 4(1)(a)). However, this does not affect provisions in the Bail Act that give the court power to make wide-ranging inquiries about the accused and to receive any evidence it considers credible and trustworthy (s 8(a)–(e)). Accordingly, in a bail application the strict rules of evidence do not apply. The informant may give evidence about the circumstances of the alleged offence by the accused, including the strength of the case. Additionally, the prosecution outline the accused’s prior criminal history and reasons why they are an unacceptable risk. An accused can also give evidence in support of an application but cannot be questioned about the offence (s 8(b)).

The court can also make an order forbidding the publication of any information relating to a bail application (s 7).

The court admitting an accused person to bail must give to the accused (and to any sureties) a notice setting out the conditions of bail. In addition, it must ensure that the accused understands the conditions and the consequences of not complying with them (s 17).

Where a person is committed for trial before a judge and jury, the Director of Public Prosecutions (DPP) must advise the accused (and any sureties) of the time and place of the trial. The accused must keep the DPP informed of any changes of address (s 29).

Making an application for bail :: Last updated: Wed Feb 19th 2014