Factsheet: Bail

Summary

This factsheet contains information about:

  • how to get bail
  • reasons that bail might be refused
  • what to do if you are refused bail and
  • your duties while on bail
man being arrested

This information relates to laws in Victoria, Australia.

What is bail?

When a person is released from police custody after being charged with an offence, they are often 'released on bail'. This means they are released on the condition that they will come back to appear in court at a later date to answer the charges. In this sense, bail is like a promise or a contract.

Tip: If you are on bail and you do not appear when you are supposed to, you can be arrested and charged with a criminal offence.

The difference between a summons and bail?

When someone is charged with a very minor offence (such as a traffic offence), the police usually do not use the bail process. Instead, they give the person a ‘summons’. A summons is a notice from the court that tells you to go to court on a particular date. This also happens with most offences in the Children’s Court.

Sureties and guarantees

Most people are given bail without needing to come up with any money. But sometimes an accused person does have to deposit some money with the police or the courts before they will be released.

Sometimes the court will ask another person to deposit or ‘put up’ some money or property as a guarantee that the accused person will return to court on the set date, and if the accused person does not turn up at court when they were supposed to, the amount put up as security may be lost.

How do I get bail?

If the police arrest you, they must either release you or take you to a court within a reasonable time. The law says that an accused person is allowed to be let out on bail unless there is a good reason why they shouldn’t be. This means that most people get out on bail. In many cases, bail is given by the police or a Bail Justice. A Bail Justice is not a judge but is someone who has the power to decide whether or not to give you bail. For more serious cases, the decision is made by a judge or magistrate instead of the police.

Tip: If you are arrested, you can apply for bail as soon as you appear in court after an arrest. Make sure your application for bail is done properly so it has a greater chance of success. You can apply for bail as many times as you like, but for any new application to be successful you will have to show that new facts or circumstances have come up.

If you are given bail, you must sign a form, which is usually called a ‘bail bond’. On this form you will see the date and place where you have to appear at court and any conditions the court has attached to your bail. For example, you might have to report regularly at a police station, or agree not to contact or interfere with any witnesses or co-accused. It is important that you follow these conditions. If you break them, your bail will be cancelled.

When can I apply for bail?

You can apply for bail at several stages in the criminal process:

  • after arrest and once you have been charged at the police station
  • when you are taken to a Bail Justice or a Magistrates' Court before your case has been heard
  • at the end of a committal hearing
  • while you are waiting for an appeal (if you have been convicted and sentenced), and
  • while you are waiting for a retrial (if you have been successful at appealing a conviction)

What if I am refused bail?

To start with, the police can either grant (agree to) or refuse bail. If the police refuse bail, you have the right to object to that decision. If the police grant you bail but attach conditions or need you to put up money, then you can object to the amount of money or to those conditions. An example of a condition that could be attached to your bail is daily reporting at a police station. In either case, the police have to tell you that you have a right to apply to a Bail Justice to review the decision of the police. If you want to apply to a Bail Justice in this way, the police have a duty to take you to a Bail Justice as soon as possible.

If the police still don’t want to grant you bail, then it is a good idea to think about the reasons why they are refusing. Sometimes you can negotiate with the police. For example, you could offer to report to a police station daily, or to get drug rehabilitation or treatment, or to provide a large surety (amount of money) as a guarantee that you will appear in court when you are supposed to.

Reasons for refusing bail

The magistrate will refuse to give you bail if:

  • you are charged with certain serious offences, unless you can show that you have ‘exceptional circumstances’ that mean you should get bail (see explanation below)
  • you are in a ‘show cause’ situation, or
  • you would be an ‘unacceptable risk’ to the community

Exceptional circumstances

Whether or not your circumstances are exceptional (very unusual or special) will be decided on the particular facts of your case. It is very difficult to convince the court that your circumstances are exceptional. On their own, being poor, unwell or elderly are not enough to count as exceptional circumstances. The court’s decision usually depends on a combination of circumstances.

Show cause

For some offences, you have to ‘show cause’ if you want to get bail. This means it is no longer the job of the police to convince the magistrate that you shouldn’t get bail; instead, it will be up to you to convince the magistrate why they should let you out on bail. You have to do this for the following offences:

  • a ‘serious offence’ (such as murder or armed robbery) and a history of skipping court when you have been given bail within the last five years
  • an ‘indictable’ offence (one that is usually heard by a judge and jury) that the police say you committed while you were waiting for a trial for another indictable offence
  • stalking
  • family violence
  • aggravated burglary
  • arson causing death
  • trafficking in a drug of dependence
  • an indictable offence while you are under a supervision order or interim supervision order
  • an offence against the Bail Act

Unacceptable risk

The magistrate will also refuse bail if they think there is an ‘unacceptable risk’ that you would:

  • not come back to court when you are supposed to
  • commit an offence while on bail
  • put someone’s safety or welfare in danger
  • interfere with witnesses

Your duties while on bail

If you have been released on bail, you still have a duty to appear at court, to let the police or prison guards keep you in custody when they need to, and to follow any other conditions attached to your bail. The police can arrest you without a warrant if they believe on reasonable grounds that you have broken a condition of your bail or if they think you are likely to break one.

If you do not follow the conditions of your bail, the police officer who charged you can apply to a court to have your bail cancelled. It is also an offence if you do not follow the conditions of bail or commit another offence while you are on bail.

Contacts and further information

Federation of Community Legal Centres

Community legal centres are independent, not-for-profit community organisations that provide free legal services to members of the public.
Tel: (03) 9652 1500
Web: www.communitylaw.org.au

Law Institute of Victoria

(for referral to a private lawyer)
Tel: (03) 9607 9311
Web: www.liv.asn.au/find-a-lawyer

Victoria Legal Aid

Victoria Legal Aid is an independent, statewide organisation that assists people with legal problems, especially Victorians who are financially or socially disadvantaged.
Tel: 1300 792 387
Locations: www.legalaid.vic.gov.au/contact-us/our-offices
Web: www.legalaid.vic.gov.au

Victorian Aboriginal Legal Service (VALS)

VALS provides referrals, advice/information, duty work or case work assistance to Aboriginal and Torres Strait Islander peoples in the State of Victoria. Solicitors at VALS specialise in Criminal Law, Family Law and Civil Law.
Free call: 1800 064 865
Web: www.vals.org.au

Acknowledgments

This factsheet was based on an earlier Law Handbook factsheet.

Victoria Law Foundation acknowledges the assistance of Magistrate Carolene Gwynn.

This page was last updated on May 30, 2017