How bail works

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 [2019] VSC 81, the Supreme Court held (at [69]) that an accused’s Aboriginality is an important consideration, but it does not swamp all other considerations. 

In Re LT [2019] 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.

Also see Re GG [2021] VSC 12 at [44] and [51], Re Hooper (No 2) [2021] VSC 476 at [54], HA (a pseudonym) [2021] VSCA 64 at [58] for other bail decisions in which the courts have considered the significance of an applicant’s Aboriginality and the application of section 3A.

If the bail applicant is a child

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).

A court hearing a bail application in relation to family violence related offending may consider previous complaints and allegations of family violence, even if charges were withdrawn or not proven. Such complaints and allegations are relevant and material to an assessment of future risk of endangerment (see Re Bertucci [2020] VSC at [58]–[59]). Other matters where courts have considered bail in the context of family violence related offending include Re Goldsworthy [2020] VSC 500 (exceptional circumstances), Re Ilpola [2020] VSC 578 (unacceptable risk), and Re JL [2020] VSC 785 (unacceptable risk).

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).