Where a bail justice refuses bail, the police must present the person before a Magistrate so that the issue of the person’s continued detention in custody or release on bail can be decided. In Victoria, the Bail Act 1977 (Vic) is the source for all of our bail laws. All our Courts have jurisdiction to hear and determine bail applications (Children’s Court, Magistrates’ Court, County Court, and Supreme Court). 

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Although a person has an entitlement if brought into custody, there are situations when this general presumption to release on bail is reversed and a person must persuade a Court that they ought to be released on bail, by satisfying either a compelling reason or exceptional circumstances test and that they do not pose an unacceptable risk. There are various ways in which the compelling reason or exceptional circumstances test may be activated when a person is in custody. In summary, the nature of the allegations in question, and an accused’s criminal history (particularly for family violence and failing to answer bail) will trigger the presumption against bail. By way of example an allegation of murder, or large commercial drug trafficking will trigger the exceptional circumstance test. Committing an indictable offence whilst on bail for another indictable offence will trigger the compelling reason test. In addition, with any application for bail, a Magistrate or Judge must also consider whether the accused would pose an unacceptable risk if released on bail. 

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Unacceptable risk refers to:

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• an unacceptable risk of committing further offences

• an unacceptable risk of interfering with other prosecution witnesses

• an unacceptable risk of failing to abide by bail conditions

• an unacceptable risk of leaving the jurisdiction (fail to answer bail)

 

Whilst the prosecution will often oppose the release of an accused from custody, at least initially, it is in many cases possible for potential bail conditions to be negotiated between prosecution and defence, so as to address the Court’s concern as to the question of unacceptable risk.  A program which enables an accused person to access rehabilitation whilst complying with other conditions of bail (reporting to a police station, curfew, non-associate) is the Court Integrated Support Program. It is frequently a condition of a person’s release on bail that they comply with the any rehabilitation program negotiated by the prosecution and defence, including the Court Integrated Support Program.

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