Appeal and variation of bail orders

When a person is arrested and police refuse to release the person on bail, or when the person arrested objects to the amount fixed for bail or a condition of bail, the police must advise the person of the right to apply to a bail justice for bail or a variation of the bail order. If the person elects to apply to a bail justice, the police have a duty to bring that person before a bail justice as soon as possible (s 10(2)). When bail is refused by the police, the reasons for the refusal have to be recorded.

As stated earlier, section 18 of the Bail Act provides that an accused who has been refused bail and is in custody may make a further application for bail, provided at least one of the circumstances in section 18AA(1) is satisfied. One of these is that the order refusing bail was made by a bail justice. The further application for bail must be heard by the same judge or magistrate who determined the previous application, if reasonably practicable (s 18(4)).

Additionally, an accused who has been granted bail may apply for a variation of the amount of bail or the conditions of bail (s 18AC(1)). The same right is given to the police informant and to the DPP (s 18AC(2)). In the case of murder, the application must be made to the Supreme Court; in any other case, the application must be made to the court that the person is required to surrender to under their conditions of bail.

An accused who wishes to make a further application for bail or an application for variation of the amount or conditions of bail must give the prosecution notice in a prescribed form at least three days before the hearing of the application (s 18AK). The prosecution can agree to dispense with the notice requirement. The court can also dispense with the notice requirement if the matter is urgent and the court can adequately determine the matter despite the lack of notice.

The DPP may appeal to the Supreme Court in any case where a grant of bail appears to contravene the Bail Act, or where the conditions of bail are insufficient and it is in the public interest to appeal bail. The Supreme Court may quash the original order and substitute one it considers appropriate (s 18A).

Despite a revocation of bail by the Supreme Court under section 18A, in Director of Public Prosecutions (Cth) v The Magistrates’ Court of Victoria and Barbaro [2010] VSC 297, Pagone J held that a magistrate had power to hear a fresh application under section 18(1).

As stated above, the Supreme Court has an inherent jurisdiction to grant bail to persons awaiting trial for indictable offences quite apart from the operation of the Bail Act (see R v Light [1954] VLR 152; R v Broome [1955] VLR 208).

If police arrest an accused person who is on bail but who is suspected of breaching their bail, they have a duty to bring that person before a bail justice as soon as practicable and in any event within 24 hours. The bail justice has a discretion whether to release the person on their original undertaking, release the person on new conditions, or revoke the bail and commit the person to prison until they appear at court for the trial (s 24).

Where a hearing is adjourned or postponed, the court may extend the bail of the person charged. The court may admit the person to bail on the same conditions or may vary the bail order. The initial sureties will be bound on any extension of bail unless, at the time of the first grant of bail, they had elected not to be bound without their consent (s 16).