Weighing a Crime's Severity - An Overview on Granting Bail

Updated Sep 18, 2021

When a loved one commits a crime, applying for bail can be a very stressful time for family. It is important to understand the process involved in an application for bail to choose the right lawyer. 

 Weighing a Crime's Severity - An Overview on Granting Bail

Applying for bail

When a loved one commits a crime, applying for bail can be a very stressful time for family. It is important to understand the process involved in an application for bail to choose the right lawyer. 

What is bail? 

Bail is the conditional release from custody for a person that has been accused of a criminal offence. 

How the court grants bail

A determination of bail is dependent on the offence the individual is charged with; in line with the Bail Act 1977 (Vic), offences are divided into three categories of bail:

  1. The Applicant has a prima facie entitlement to bail under s 4 of the Bail Act 1977 (Vic).
  1. The Applicant is required to show that a compelling reason exists that justifies the grant of bail under s 4AAA(3) of the Bail Act 1977 (Vic).
  1. The Applicant is required to show that exceptional circumstances exist that justify the grant of bail pursuant to s 4AA(1) [or 4AA(2)] of the Bail Act 1977 (Vic) (the “Bail Act”)

In most cases, an individual is entitled to bail for all crimes unless the criminal act falls under the second or third category.

Factors considered by the court when granting a person bail 

Compelling reason/Exceptional circumstances

Usually, the Applicant relies on a combination of factors to show that compelling reasons/exceptional circumstances exist to justify a grant of bail. Some of these factors can include:

  1. Age;
  2. Whether the person has a criminal history; 
  3. Access/availability of treatment;
  4. Support in the community;
  5. Health;
  6. Any other vulnerabilities;
  7. Whether the Applicant has stable accommodation;
  8. Whether time spent on remand may exceed any sentence; 
  9. Conditions in custody in response to COVID-19;
  10. Risk to applicant’s health in custody due to COVID-19.

The court must also consider the surrounding circumstances under s 3AAA of the Bail Act: this includes:

  • Personal circumstances – s 3AAA(1)(g)
  • Special vulnerability, such as mental health issues or intellectual disability – s 3AAA(1)(h)
  • Associations and home environment – s 3AAA(1)(g) 
  • Delay – s 3AAA(1)(k)
  • Compliance with earlier grants of bail – s 3AAA(1)(d)

How the court assesses alleged risk factors

The court must then determine whether the Applicant is an unacceptable risk. The police usually oppose bail on the grounds that:

  1. The Applicant, if granted bail, will interfere with witnesses; or
  2. The Applicant, if released on bail, will commit an offence whilst on bail; or
  3. The Applicant, if released on bail, will endanger the safety and welfare of members of the public.

If the Magistrate or Judge determines that the Applicant is an unacceptable risk and there are no bail conditions that can mitigate that risk, then bail will be refused. 

Conclusion

Applying for bail is a complex process, sourcing a reliable criminal law expert is pertinent to ensuring that bail is granted with reasonable conditions whilst waiting for a case to be concluded. 

If you would like to read more click here: https://www.judicialcollege.vic.edu.au/resources/bail-materials