Experienced Bail Lawyers for Urgent Bail Applications in Victoria

If you or someone close to you has been arrested and refused bail, getting legal advice quickly can be critical, so that a bail application can be arranged.

A bail application is an application for a person accused of an offence to be released from custody while their criminal matter is dealt with by the courts. In Victoria, bail law is governed principally by the Bail Act 1977.

The test that applies to a bail application depends on the circumstances of the accused and the offence charged. Some applications involve the ordinary unacceptable-risk test, while more serious matters can require the accused to establish compelling reasons or exceptional circumstances before bail can be granted.

A well-prepared bail application should address the specific concerns likely to be raised by the prosecution rather than simply asking the court to release the accused.

What is a bail application?

A bail application is a request that a person who has been arrested or charged be released from custody while their criminal case continues.

Being granted bail does not mean the charges have been withdrawn or that the accused has been found not guilty. The accused remains subject to the criminal proceedings and must comply with the terms of their bail.

Bail conditions can include requirements concerning:

where the accused must live;
reporting to police;
curfews;
non-contact conditions;
treatment or rehabilitation;
employment or education;
surrender of a passport;
not possessing firearms or other weapons;
abstaining from alcohol or drugs in appropriate circumstances; and
attending court as required.

How is bail decided in Victoria?

Victoria has a structured bail system.

Depending on the offence and circumstances, the decision-maker may need to consider:

whether the accused must establish exceptional circumstances;
whether the accused must show a compelling reason why continued detention is not justified; and
whether there is an unacceptable risk associated with releasing the accused.

For Schedule 2 offences, the accused must generally first satisfy the decision-maker that there is a compelling reason justifying release. If that threshold is met, the decision-maker then considers whether the accused presents an unacceptable risk.

For certain Schedule 1 matters, the more demanding exceptional circumstances test applies.

The particular charge, the accused’s criminal history, previous bail compliance and the circumstances of the alleged offending can therefore have a significant effect on the application.

What is the unacceptable risk test?

The court must consider whether releasing the accused would create an unacceptable risk that the accused would:

fail to appear in court;
commit an offence while on bail;
endanger the safety or welfare of another person; or
interfere with witnesses or otherwise obstruct the course of justice.

A bail application should therefore directly address any alleged risk.

For example, if police allege that an accused may commit further offences, the application may need to propose conditions designed to reduce that risk.

What are compelling reasons for bail?

There is no single checklist that guarantees a finding of compelling reasons.

Depending on the circumstances, relevant considerations may include:

stable accommodation;
employment;
family responsibilities;
treatment or rehabilitation arrangements;
previous compliance with bail;
the accused’s criminal history;
the strength of the prosecution case;
the likely sentence if convicted;
personal vulnerabilities;
proposed supervision;
participation in support programs; and
the proposed conditions of release.

The significance of each factor depends on the individual case.

What are exceptional circumstances?

Exceptional circumstances are a higher threshold than simply demonstrating that release would be convenient or beneficial.

Where the exceptional circumstances test applies, the application must be carefully prepared around the particular circumstances relied upon.

This can involve evidence about the accused’s personal circumstances, the allegations, the prosecution case, the likely outcome, available supervision, rehabilitation and other relevant matters.

What happens if bail is refused?

If bail is refused, the accused generally remains in custody while the criminal proceeding continues.

Depending on the circumstances, there may be options for making a further application or challenging the decision. The appropriate procedure depends on the court, the nature of the original application and any change in circumstances.

This is one reason why obtaining legal advice early can be important.

What should I bring to a bail application?

Useful information can include:

proof of residential accommodation;
employment information;
details of family responsibilities;
treatment or rehabilitation arrangements;
evidence of counselling or support;
proposed surety information, where relevant;
details of proposed bail conditions;
information concerning previous bail compliance; and
documents addressing any particular risk alleged by police.

Can a lawyer help me get bail?

Yes.

A criminal defence lawyer can:

advise about the applicable bail test;
identify the issues likely to concern the court;
prepare evidence supporting release;
propose appropriate bail conditions;
make submissions on the applicable legal test;
challenge inappropriate or unsupported prosecution allegations; and
represent the accused at the bail hearing.

Urgent bail matters should generally be addressed as soon as possible.

Speak to a Melbourne Bail Lawyer

If you or someone you know is in custody in Victoria, contact our criminal defence lawyers as soon as possible to discuss the circumstances of the matter and the available bail options.

Frequently Asked Questions

1. How quickly can a bail application be made?

A bail application can be made while a person is in custody, subject to the applicable legal procedure. The timing and appropriate court depend on the circumstances of the case.

2. Can I get bail for a serious criminal offence?

It is possible in some circumstances, but serious offences can attract more demanding bail tests. Some offences require the accused to establish exceptional circumstances or compelling reasons before the court can consider whether release is appropriate.

3. What happens if police oppose bail?

The prosecution can oppose bail and present material relevant to the applicable bail test. A defence lawyer can respond to those allegations and propose conditions addressing the identified risks.

4. Does having a criminal record mean I cannot get bail?

No. A criminal history is relevant, particularly where it includes previous failures to comply with bail or similar offending, but it does not automatically determine the outcome.

5. Can bail conditions be changed?

Bail conditions can potentially be varied, depending on the circumstances and the applicable procedure.

6. What happens if I breach bail?

A breach of bail can result in further criminal consequences and can make obtaining bail more difficult. The specific consequences depend on the alleged breach and surrounding circumstances.

7. Can I apply for bail again after being refused?

A further application may be possible in appropriate circumstances. Whether it should be made, and how it should be prepared, depends on the reason bail was previously refused and whether there has been a relevant change in circumstances.

8. Do I need a lawyer for a bail application?

You are not necessarily required to have a lawyer, but bail applications can involve complex legal tests and significant consequences. Obtaining legal advice can help ensure the application properly addresses the issues relevant to the court.

If someone you know has been arrested and is currently in custody, contact us now to get urgent advice about an application for bail.