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Release on bail

Most people who have been arrested and charged with committing an offence must obtain bail before they can leave the police station. The main purpose of bail is to make sure that the person turns up at court to answer the charge against them.

The police have wide powers in relation to the granting of bail. In most cases, police will agree to grant bail at the police station. It is usually the case that bail is granted without any need for a surety (eg money), only an undertaking (ie a promise to appear). Very few bail matters end up going before the courts. This usually happens when the police do not agree to grant bail.

If the bail hearing does go to court, bail may be refused if the court or a bail justice is satisfied that there is an unacceptable risk that you will:

  • Fail to appear at the court hearing (eg. you have failed to appear at court on a previous occasion)
  • Commit an offence whilst on bail (eg. if you have been charged whilst already on bail)
  • Endanger the safety or welfare of members of the public; and/or
  • Interfere with witnesses

If you are applying for bail in the Magistrates' Court, the application must be well prepared. If the application is unsuccessful and you were represented by a lawyer, then another application for bail to the Magistrates' Court can only be made if there are new facts or circumstances to present to the court.

It is often better to spend a few days in custody while a solid bail application is prepared by the solicitor. This allows time for witnesses who can support the application to be contacted and organised. Although this advice is not popular with people being held in custody, it is generally sound advice and increases the chances of a person being granted bail in the face of opposition by the police.

If you want to apply for bail immediately, and the police oppose bail, you need to be aware of what the key issues in the police opposition to you being granted bail are. Then you should undertake your own bail application. If bail is refused, there is then nothing to stop you making a further application for bail with the assistance of a lawyer appearing on your behalf, where the main issues can be addressed after proper preparation by a solicitor acting for you.

For all charges in Victoria, with the exception of treason, murder and certain serious drug trafficking and violence offences using weapons, there is a presumption in favour of bail. That is, bail must be granted unless the police or prosecution makes a successful case against bail. The main issues that may be raised to oppose your normal right to bail include some reasons to suggest that you:

  • Will not appear in court
  • Will threaten witnesses; and/or
  • are about to commit further offences

With trafficking or cultivation of large quantities of illegal drugs, or with serious offences where firearms have been used, there is a presumption against bail, so an argument must be made out for bail (Bail Act 1977 (Vic ), section 4).

In most cases, however, you do have a right to bail and will be given bail, either by the police or a magistrate. With all minor offences (and many major offences) you should be granted bail. This right recognises the legal doctrines (which are often disregarded by the police and the mass media) that there is a presumption that you should be granted bail, and that you are innocent until proven guilty.

If you are aware police wish to charge you with an offence, you will increase your chances of bail by making an appointment to see them, with a lawyer. If you do this, go very early and on a week day, so that if police refuse bail you'll go before a magistrate that morning, and not be held in police cells overnight.

If you are refused bail by the police outside of court hours, you can apply for bail from a bail justice. If you are refused bail by the bail justice, you must be brought before the Magistrates' Court as soon as practicable. You then have the right to apply for bail.

Bail Conditions

Bail may be granted subject to conditions that may include such things as:

  • You undertake to appear in court
  • You or someone else agree to forfeit a sum of money if you fail to appear in court as required (ie. a surety); the amount of money must be within your means
  • You stay away from an area (eg. a protest site) or a witness
  • You surrender your passport
  • You tell the police if you change your address

The condition of "staying away from an area" has been increasingly used against activists, to prevent them returning to the protest site.

You may want to object on the grounds that it is an infringement of your basic rights. However, it will be likely that you will need to show a legitimate reason for entering that area, or that such a restriction is necessary in all the circumstances. Where you have been arrested for nonviolent demonstration, you may be able to argue that there is no need for a condition stopping you returning to a particular area.

If the magistrate insists, and you are forced to accept or lose your freedom, you can accept the condition and later make application to vary the condition. You may also consider lodging an urgent application to the Supreme Court to vary the bail and delete the condition. However, you should note that it takes some time to have a bail application listed in the Supreme Court, and if you have not accepted bail with the condition attached, you will be held in custody pending the listing of your bail application.