Persons being charged with an offence who are held in custody can be released upon entering an undertaking to the court. This is called ‘bail’ (the process before the Court is called a bail application). Sometimes bail can be granted to an accused by a Police Sergeant or the officer in charge, and this applies for certain offences.
The rest of the time the accused has to make a ‘bail application’. This is heard in front of a magistrate or Bail Justice (if court sitting outside hours). The court can refuse bail if it there is an unacceptable risk that a person will abscond or will fail to appear in court, or when they may commit a further crime, intimidate witnesses, destroy evidence or obstruct the course of justice.
Bail is always subject to certain conditions. These conditions may be as simple as being the accused’s ‘own undertaking’. This means that they do not have to pay a security or deposit, but if they fail to appear they may be remanded back in custody.
Sureties and deposits
A surety is a person who gives an undertaking to the court to provide some property (usually money) to ensure the person will appear at Court to answer their charges. The amount of surety that is required in cases differs, and will be decided by the Court. If a person fails to appear before that Court then the surety will have to make good the debt, and they may have their assets sold in order to satisfy that debt.
Sometimes other conditions are imposed on a person who has been granted bail. These include the requirement not to attend international points of departure, to surrender their passports, to reside at a certain address, to report to police stations on certain days etc. The conditions of bail are really dependent on the facts of the case.
The Bail Act 1977 (Vic)
The Bail Act governs the granting of or refusal against bail. It operates in conjunction with the common law and is recognised under s.4(3) as not exhaustive. The aims of the Bail Act is to ensure an accused person attends their trial while balancing the aims of justice to preserve a persons liberty.
There are four situations when bail will be heard. These include when an accused is charged at a police station, when an accused appears before a court of bail justice, when an accused is committed for trial after a preliminary hearing and when an appeal is lodge in relation to a custodial sentence. Certain factors will be presented to the court as to why/why not a person should be granted bail. Some things include the standing in the community, flight risk, a persons reputation, their ties to the community, their financial position and anything else that indicates that a person is likely to appear at trial.
Bail application before the court or bail justice
In order to seek bail a person must be in custody as per the definition of s.464 of the Crimes Act 1958 (Vic) or arrested. The police will either bail a person on their own undertaking if it is not reasonably practicable to bring an accused before a Court or Bail Justice within 24 hours. If however the Police oppose bail or the conditions of bail are unacceptable to the accused, then under s.10 they must be brought to a Court or Bail Justice as soon as practicable. Under s.12 a court or bail justice can either grant or refuse a bail application. But it must certify the grounds for either decision.
The types of bail cases
Application for bail cases can be grouped into three categories. The first category is the ‘exceptional circumstance’ case. For persons charged with murder, treason or certain serious drug offences outlined in s.4(2) of the Bail Act the onus is on the person seeking bail to establish that there are exceptional circumstances (on the balance of probabilities) that warrant a granting of bail. The second category of cases is the ‘show cause’ case. This occurs when persons charged with various offences (detailed in s.4(4)) must show cause why his or her detention in custody is not justified. The third case is the presumption for bail. This is where the onus is on the prosecution to prove that there is an unacceptable risk that a person may fail to answer to custody in order to answer bail, commit an offence while on bail, endanger the community or interfere with witnesses or obstruct the course of justice.
In relation to the first two, it is difficult to attribute a definitive meaning to the ‘show cause’ and the ‘exceptional circumstances’ cases. These are usually decided on a case-by-case basis. The court will generally have regards to the delay before the hearing can commence, health of the applicant, domestic and personal circumstances (for example, family or sick children), lack of prior convictions and the strength of the case against the accused. A combination or ‘nexus’ of these factors may point to or away from an accused getting bail.
Amendment to bail conditions
Often it is possible to seek an amendment to bail conditions if the conditions are overly onerous or detrimental to a persons life. While waiting for a matter to be heard, an applicant’s personal situation can change due to ill-health or other circumstances. In some cases it may be possible to apply to travel interstate or overseas before trial.
If you wish to seek an amendment to your bail conditions or have been charged with an offence and need to seek bail it is imperative that you contact a lawyer. Grigor Lawyers can can advise and represent you in these matters.