Overview of the concept of bail
Bail is essentially about ensuring that a person turns up to court meet the charges levelled against them. 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 an accused person failing to appear in court (that could only be met by every accused person being detained in custody pending trial), but about reducing that risk to an acceptable level.
If the bail applicant is an Aboriginal person or a Torres Strait Islander
A further consideration in the Bail Act is the Aboriginality of the bail applicant. In making a determination under the Bail Act, a bail decision-maker must take into account any issues that arise due to the person’s Aboriginality, including cultural background and other relevant cultural issues or obligations (s 3A Bail Act). 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.
In Re Reker  VSC 81, the Supreme Court held (at ) that an accused’s Aboriginality is an important consideration, but it does not swamp all other considerations. In Re LT  VSC 143 (at [66–67]), the Supreme Court found that a young Aboriginal offender should be supported to explore her heritage and strengthen her bonds with her family, rather than have that opportunity disrupted by time on remand.
There are specific considerations if the bail applicant is a child (s 3B Bail Act). A child cannot be remanded for longer than 21 days at a time (s 12(4)(5)).
The Evidence Act 2008 (Vic) (s 4(1)(a)) applies to the conduct of bail hearings. However, this does not affect provisions in the Bail Act (s 8(a)–(e)) that give the court power to make wide-ranging inquiries about the accused and to receive any evidence it considers credible and trustworthy.
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 outlines 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(1)(b)). However, it is rare for an accused to give evidence in a bail application.
A bail decision-maker who is considering releasing an accused person on bail must ask the prosecutor to ascertain whether there is in force a family violence intervention order, a family violence safety notice, or a recognised domestic violence order that has been made or issued against the accused person.
If the accused person is charged with a family violence offence, the bail decision-maker must consider whether, if the accused person was released on bail, there would be a risk they would commit family violence and whether the risk could be mitigated by any bail conditions, or by making a family violence intervention order (see s 5AAAA).
The court admitting an accused person to bail must give the accused (and any sureties) a notice setting out the bail conditions. The court must also ensure that the accused understands the conditions and the consequences of not complying with them (s 17 Bail Act).
The court can also make an order forbidding the publication of any information relating to a bail application (s 7 Bail Act).