Bail Applications Melbourne

Bail refers to the process of releasing a person who has been arrested or detained from custody while they await their trial or other legal proceedings. If a person is ‘on bail’ they will be required to return to court for their case.

The conditions imposed on an accused on bail will depend on a variety of factors. This includes the nature of the charges, the criminal record of the accused, any risk that they may flee (a ‘flight risk’), whether they pose a danger to the community if released, or the risk that they will interfere with prosecution witnesses in their criminal case. In some cases, the court may require additional conditions of release, such as a surety (for example money to be held with the court), the surrender of a passport, or to not attend points of international departure.

If the accused attends court as required, the surety will be returned at the conclusion of the case. However, if the accused fails to appear, the bail may be forfeited, and a warrant may be issued for the arrest of the accused.

A Bail Justice or Victoria Police may grant bail to individuals when they are charged with certain crimes. However, people who are denied bail by Victoria Police or a Bail Justice have the opportunity to apply for bail in the Magistrates’ Court of Victoria.

Depending on what the criminal charge is, the Court must consider the following bail tests pursuant to the Bail Act 1977 (Vic):

1. Prima Facie Entitlement:

This means that every person has a presumed entitlement to bail. Bail must be granted unless the Prosecution can demonstrate to the Court that the person poses an unacceptable risk based on some or all the following considerations:

  • Committing further offences if granted bail;
  • Failing to appear in Court;
  • Endangering the safety or welfare of any person; or
  • Interfering with witnesses.

2. Show Compelling Reasons:

Under this category, an individual must satisfy the Court that there are compelling reasons for them to be released on bail.

Factors that the Court must take into consideration when deciding whether there are compelling reasons are:

  • The personal circumstances of the person;
  • Community support available to them;
  • The strength of the evidence against them;
  • The likelihood of receiving a prison sentence if found guilty of the charges; and
  • Delay in the criminal case going to trial.

3. Exceptional Circumstances

In this category, an individual must demonstrate that there are exceptional circumstances for a Court to release them on bail. The Court will assess matters similar to those in the ‘Show Compelling Reasons’ category. However, the category of ‘exceptional circumstances’ is more difficult to satisfy to be granted bail.

It is important to note that irrespective of the existence of compelling reasons or exceptional circumstances, the Prosecution may still say there is an unacceptable risk if an individual is released on bail. If this is the case, the Court must consider whether there are any bail conditions that may mitigate or lessen the risk alleged. (See risks under ‘Prima Facie Entitlement’ above)

Some bail conditions include:

  • Curfew;
  • Surety;
  • Reporting to a police station; or
  • Residing at a particular address (a specific residence or a rehabilitation facility).

Elizabeth McKinnon has extensive experience in bail applications and can explain to you which category applies to you, and which test will be applicable. In other words, what you will you need to demonstrate to the Court to persuade it to grant you bail. Care should be taken when a bail application is made. You need to be organised and make the strongest application for bail you can at the time. The reason for this is that if your bail application fails you will need to show that new facts and circumstances have arisen to make another bail application, or you will need to make a bail application in the Supreme Court of Victoria. This also means that you will be required to be held in custody before either of these options are available to you.

Do not risk losing your freedom and being held in custody because you were not fully prepared to make the strongest case in an application for bail. Being held in custody also makes it much more difficult to prepare the defence of your criminal case. It is a significant disadvantage to an accused if they are in custody rather than free to assist in the preparation and defence of their criminal charges.

Do not hesitate to call Elizabeth to be your legal representative for bail. The consequences of being in custody can have a serious impact on the outcome of your criminal case.

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