What is bail?

An accused is presumed to be entitled to bail. Most will be bailed “on their own undertaking” that they will appear in court. A monetary deposit may be sought from the accused or another person, who becomes a “surety”.

An introduction to bail

Bail is the release from custody of a person charged with an offence, on that person’s signed undertaking that they will appear in court to answer the charge. This undertaking is a pledge they make when they sign the bail bond entitling them to conditional freedom. A person on bail who fails to comply with their bail conditions can be arrested. It is a criminal offence not to appear when required to do so, to breach a bail condition, or to commit another offence while on bail.

The release of an accused on bail is usually invoked for the more serious offences. For minor offences (e.g. traffic offences), the police usually serve a charge and summons to appear at court at a later date. This also happens for most Children’s Court offences (seeWhat matters can the Children’s Court hear?” in The Children’s Court).

The law in Victoria relating to bail is found in the Bail Act 1977 (Vic) (“Bail Act”). This Act applies not only to offences charged under state law, but also to relevant Commonwealth offences by virtue of sections 68(1), 79 and 80 of the Judiciary Act 1903 (Cth).

Bail Amendment Acts 2017

After the tragic events that took place in Bourke Street, Melbourne, on 20 January 2017, the Honourable Paul Coghlan QC reviewed the Bail Act and its operation and recommended that the Victorian Government reform Victoria’s bail laws.

On 21 May 2018 and 1 July 2018, there was significant reform of the Bail Act with the commencement of the Bail Amendment (Stage One) Act 2017 (Vic) and the Bail Amendment (Stage Two) Act 2017 (Vic), respectively (collectively, the “Bail Amendment Acts 2017”).

The amendments inserted a purpose (s 1A) and guiding principles (s 1B) that include maximising the safety of the community and the people affected by crime to the greatest extent possible, taking into account the presumption of innocence and the right to liberty, fairness, transparency and consistency in bail decision-making and promoting public understanding of bail practices and procedures.

The Bail Amendment Acts 2017 also:

extended the categories of offences that place an accused in a “reverse onus” position for bail;

replaced the “show cause” test with a “show compelling reason” test;

introduced a police remand power;

provided for a deferral of a bail decision if an accused is intoxicated;

made amendments recommended in the report of the Royal Commission into family violence;

prescribed that only a court can grant bail where:

an accused is required to show exceptional circumstances, or

an accused is already on two or more counts of bail, with limited exceptions.

The Bail Act contains a basic presumption that an accused person is entitled to bail. However, like most rules, there are exceptions (seeGrounds for refusing bail”) and the burden of proof shifts depending on the nature of the exception.