What Is Bail?

Being arrested and charged with a criminal offence can be a frightening experience. One of the first questions many people ask is “what is bail” and whether they will be released from custody or kept in jail until their case is finalised.

The answer often depends on whether bail is granted. Bail allows a person charged with a criminal offence to remain in the community while their case progresses through the courts, subject to conditions designed to ensure they attend court and do not pose an unacceptable risk.

Bail law in Victoria has become significantly stricter in recent years, and obtaining bail can be challenging depending on the offence and a person’s criminal history. If you or a loved one has been refused bail, obtaining legal advice as quickly as possible is critical.

At Wilkinson Lawyers, we regularly represent clients in bail applications throughout Ballarat, Melbourne and regional Victoria. Whether you have been arrested overnight or are applying for bail in the Magistrates’, County or Supreme Court, we can provide urgent advice and representation.

What Is Bail?

Bail is a legal authority that allows a person charged with a criminal offence to be released from custody while their criminal charges remain before the court.

Rather than remaining in prison on remand, a person granted bail is permitted to live in the community until their next court appearance, provided they comply with any conditions imposed by the court.

Bail is not a finding that someone is innocent or guilty. It is simply a decision about whether they should remain in custody before their case is determined.

Who Decides Whether Bail Is Granted?

Depending on the circumstances, bail may be granted by:

• Victoria Police;

• a Bail Justice (in limited circumstances); or

• the Magistrates’, County or Supreme Court.

If police refuse bail, the accused will usually be brought before a court as soon as practicable for a bail application.

Does Everyone Get Bail?

No.

Some people are released by police shortly after being charged, while others must apply to the court for bail.

Whether bail is granted depends on several factors, including:

• the seriousness of the alleged offence;

• the strength of the prosecution case;

• the person’s criminal history;

• whether they have previously breached bail;

• whether they are likely to attend court;

• whether they pose a risk to the community;

• whether they may interfere with witnesses or obstruct justice; and

• the applicable test under Victoria’s bail laws.

For some serious offences, the law requires an accused person to satisfy a higher legal test before bail can be granted.

What Conditions Can Be Imposed?

If bail is granted, it is often subject to conditions.

Common bail conditions include:

• residing at a particular address;

• reporting to a police station;

• not contacting certain people;

• not entering particular suburbs or locations;

• surrendering a passport;

• obeying a curfew;

• not consuming alcohol or illicit drugs;

• participating in treatment or counselling; and

• complying with electronic monitoring in appropriate cases.

The purpose of bail conditions is to reduce any identified risks while allowing the accused person to remain in the community.

What Happens if Bail Is Refused?

If bail is refused, the accused will usually remain in custody on remand until:

• another bail application is made;

• the charges are resolved; or

• the matter proceeds to trial or sentence.

A refusal of bail does not mean a person has been found guilty.

Many people spend time on remand before ultimately being found not guilty or receiving a sentence that does not involve further imprisonment.

Can I Apply for Bail Again?

Yes.

A person whose bail has been refused may be able to make another application.

However, the court will generally require there to be new facts and circumstances before hearing a further bail application.

Examples may include:

• new accommodation becoming available;

• a treatment or rehabilitation placement;

• changes in the prosecution case;

• delays in court proceedings;

• changes in personal circumstances; or

• additional support available in the community.

Whether another application can be made depends on the individual circumstances of the case.

What Happens at a Bail Application?

A bail application is usually heard before a Magistrate or Judge.

During the hearing:

• the prosecution explains why bail should be refused;

• the defence explains why bail should be granted;

• evidence may be called;

• proposed bail conditions may be discussed; and

• the court decides whether the applicable legal test has been met.

Some bail applications are determined within minutes, while others involve lengthy legal argument and witness evidence.

What Happens if I Breach My Bail?

Bail is a court order and must be taken seriously.

If you fail to comply with your bail conditions, you may:

• be arrested;

• have your bail cancelled;

• face further criminal charges in some circumstances; and

• find it more difficult to obtain bail in the future.

If you are having difficulty complying with your bail conditions, you should obtain legal advice before a breach occurs. In some cases, it may be possible to apply to vary your bail conditions.

Why Early Legal Advice Matters

The first bail application is often the most important opportunity to secure your release from custody. Proper preparation can make a significant difference to the outcome.

An experienced criminal defence lawyer can identify the relevant legal test, prepare supporting material, arrange suitable bail addresses, obtain character references, organise treatment or rehabilitation options where appropriate, and present the strongest possible case to the court.

The sooner legal advice is obtained, the sooner these issues can be addressed.

Speak to a Criminal Defence Lawyer

If you or a family member has been arrested and needs urgent advice about bail, Wilkinson Lawyers can help.

We regularly appear in bail applications throughout Ballarat, Melbourne and regional Victoria and understand the urgency of securing a person’s release from custody. We can advise you about your prospects of obtaining bail, prepare your application and represent you in court.

If you need urgent advice about bail, contact Wilkinson Lawyers as soon as possible. Early legal representation can make a significant difference to the outcome of your application.

Contact Jess Wilkinson on 0468 364 121 or jess@wilkinsonlawyers.com.au to discuss your matter and obtain advice about the best way forward.