What is a bail application?

An accused may either be released or held in custody after being charged by police. Once charges are laid, the police must either release an accused on summons or bail, or make a remand application at court within a reasonable time. An out of sessions remand hearing before a bail justice may be held, or the matter may be referred to a bail and remand court.

Can I be represented by a lawyer?

An accused always has the right to be represented by a lawyer at a bail application. Should bail be refused by a bail justice at an out of sessions hearing, an application can still be made at the Magistrates’ Court. It is important to be properly represented at hearings of this type, as a bail application can only be made at the Magistrates’ court once unless new facts and circumstances apply.

How is a bail application decided?

In Australia, legal issues are decided by courts using a common law adversarial system. This means that a prosecutor will be able to make a submission opposing bail, and the lawyer representing the accused can make a submission in support of bail. A Judge or Magistrate has to balance these competing submissions when assessing the merits of a bail application, taking into account arguments presented by both parties, precedent of previous legal cases, relevant legislation and the issues determined by the facts and circumstances presented to the court. The relevant legislation in Victoria is covered by the Bail Act 1977.

Under most circumstances, an accused has a prima facie right to bail, and the prosecution is obligated to prove that the accused is an unacceptable risk of failing to turn up to court, or committing further offences while on bail,  or interfering with witnesses. However, where one is charged with certain types of offences, or has been alleged to have committed offences on bail, one may fall into a show compelling reason position. In a show compelling reason position, the onus of proof is reversed, and the defence has to demonstrate a compelling reason as to why detention of the accused is not justified.

Where an accused has been charged with Murder or other very serious offences, bail can only be granted where the defence can show that exceptional circumstances exist. This is a very high test, and requires extensive preparation to be successful.