Garde Wilson Lawyers fights to keep you from being detained a second longer than you should be. Find out how we can get you released, fast.
What is bail in Victoria?
A grant of bail will release you from custody (goal or police station) under specific conditions laid down by the court, most important of which is the condition to appear before the court at a set date.
Once police have placed you in custody, you should seek advice from an experienced criminal lawyer as quickly as possible, who will negotiate with police to obtain bail immediately at the station. Our criminal law experts respond rapidly to calls for help from people held in custody across Melbourne.
If police will not cooperate, we can apply for bail in court with a reasonable set of conditions, allowing you the freedom of movement and association needed to resume life, work and family commitments.
Our lawyers regularly appear in bail applications throughout Greater Melbourne, for first time drug possession charges through to serious criminal matters concerning allegations of theft, homicide, sex offences, and assault.
If you or a loved-one has been charged with a criminal offence and is being held in custody, contact Garde Wilson Lawyers immediately on 0455 810 444 to get best chance of a speedy bail release under reasonable conditions.
What is the bail application procedure in Victoria?
Once you have been charged and placed in police custody, either in a gaol or at a police station, you have the right to make a bail application. Police may not inform you of that right, which is why you should always contact a lawyer immediately after being arrested and charged with an offence.
This is how the bail application process in Victoria usually proceeds:
- Police Custody
Having been arrested and charged with a criminal offence, you have been placed in police custody, either in a gaol or at a police station. Ideally, you contacted your lawyer immediately after your arrest and they are negotiating with police to obtain bail.
When deciding to grant bail from their custody, the police will consider these factors:
- Have you been charged with a minor or summary criminal offence? If so, then you will likely be granted bail immediately. They will set a date for your court appearance and may impose bail conditions which must be kept.
- Have you been charged with a serious criminal offence? If so, then the police may refuse to grant you bail. Ideally, you will be seen by a Magistrate within 24 hours of your arrest. If you cannot be seen by a Magistrate in that time, the police may decide to hold you in custody if there is an unacceptable risk that you will reoffend if released.
- Before the Court
If police have refused bail, you may request to be heard by a Bail Justice or Magistrate within 24 hours or as soon as practicably possible to make a bail application. Again, it’s vital you seek the help of an experienced criminal lawyer to represent you in court to ensure your bail application is successful.
When deciding to grant bail, the Court will consider these factors:
- The prosecution will try to show that you pose an ‘unacceptable risk’ to the community and should not be released from police custody. Their argument may rest on the seriousness of your current criminal charge or previous criminal charges.
- Your lawyer will need to prove that there are ‘compelling reasons’ or ‘exceptional circumstances’ as to why you should be granted bail and released from police custody.
- Bail Application Decision
If the court decides that ‘compelling reasons’ or ‘exceptional circumstances’ exist for your release on bail, your application will be granted.
On the other hand, if the court believes you post an ‘unacceptable risk’ to the community, your bail application will be refused and you will be returned to police custody to await your next court appearance.
- Bail Conditions
If your application for bail is granted, you will be required to enter into a written undertaking (make a solemn promise to the court) to surrender yourself into custody and/or reappear in court at the time and place of the hearing or trail for your case.
The court may decide to grant bail in a number of ways:
- Without any conditions attached to your release other than to surrender yourself into custody and/or reappear in court at the time and place determined by the judge or Bail Justice, or
- With conditions attached stipulating specific limitations or conduct that must be adhered to while you are released on bail, and/or
- Upon deposit of money as a security against any penalty the court may later impose, or placement of a ‘surety’ (money or property) of a certain value which is forfeited if bail conditions are breached.
- Released on Bail
While you are released on bail, it is vital you adhere strictly to any conditions imposed by the court or police.
If you are unable to meet your bail conditions for any reason, you must contact your lawyer immediately, as a breach of bail conditions is itself an offence, carrying stiff penalties (up to 3-12 months imprisonment) and may result in a warrant issued for your return to police custody.
What does ‘Unacceptable Risk’ mean?
When your bail application is heard by the Magistrate or Bail Justice, the prosecutor or other party who opposes your bail application, will try to prove that you present an ‘unacceptable risk’ to the community.
This includes the likelihood, based on evidence brought before the Magistrate or Bail Justice that you may:
- Breach your bail conditions
- Commit an offence while on bail
- Endanger the safety or welfare of any person
- Interfere with a witness
- Obstruct the course of justice in any matter
- Fail to surrender yourself into custody or appear in court when required.
If the court agrees with the prosecutor’s argument and is satisfied you do pose an ‘unacceptable risk’, they must refuse you bail application.
What are ‘Compelling Reasons’ and ‘Exceptional Circumstances’?
During the bail application process, your lawyer will try to prove that there are ‘compelling reasons’ or ‘exceptional circumstances’ why you should be granted bail and not kept in custody.
It is up to you (and your lawyer) to show evidence of ‘compelling reasons’ why it is safe for the court to release you and why detaining you further is not justified. These include:
- Stable accommodation and living situation
- Stable employment
- A clean criminal record
- If time spent in remand would exceed the sentence imposed
- A weak police case or lack of evidence
- Family supervision and support
- Compliance with bail conditions in previous matters.
Your lawyer may also show the presence of ‘exceptional circumstances’ supporting your argument why detention in custody is not justified. These include:
- Serious illness or the risk of serious illness
- Forgiveness by the Victim
- Excessive delays in criminal proceedings
- If you are assisting authorities with investigations
- Vulnerabilities of the accused to continued detention.
These are not a complete list of ‘compelling reasons’ and ‘exceptional circumstances. In presenting your application, your lawyer will compose a thorough and complete argument as to why detention in custody is not justified to persuade the court you do not pose an ‘unacceptable risk’, and exhaust all available opportunities to secure your release on bail.
What bail conditions can be imposed by the court or police?
Bail conditions are set by courts or police to mitigate any ‘unacceptable risks’ such as
- Failing to answer bail by attending court or surrendering yourself into custody
- Committing a criminal offence while on bail
- Endangering the safety and welfare of anyone
- Interfering with witnesses or obstructing the course of justice.
Bail conditions fall into two broad categories: conduct conditions, which direct how you must act while released on bail, and financial conditions, which stipulate what monies or property you must put as deposit or surety for bail to be granted.
Conduct bail conditions often include:
- Periodically reporting to a police station
- A static address where you must reside
- The imposition of a nightly curfew
- Staying away from certain places and people
- Abstaining from alcohol or drugs
- Attending violence, drug or alcohol support programs
- Remaining within the state or country
- Surrendering your passport.
Depending on the nature of the charges you have been arrested for, the court or police may stipulate very specific or tailored conditions limiting your conduct.
Financial bail conditions often include:
- Making a monetary deposit of a specified amount in advance of any fines or penalties imposed by the court if you are found guilty of your charges.
- Paying a surety, either in the form of a specified monetary amount or property of equal valued stipulated in your bail conditions.
Both deposits and sureties can be made by you or by another person on your behalf. In most cases, sureties are held by the court until the finalisation of criminal proceedings and are liable to forfeiture, in whole or in part, if you do not meet your bail conditions.
How do I apply for Bail in Victoria?
Being charged, arrested and detained by police is a highly stressful experience which can impede your decision making and negotiating abilities. Police may not properly inform you of your right to apply for bail and being detained and anxious, you are likely to not be in the best frame of mind to engage in the highly complex bail application process.
This is why if you want to be released from police custody quickly, your first act when being charged and arrested is to request to speak to your lawyer. Remember, anything and everything you say once arrested can and will be used against you. Silence is not obstruction, it’s your right.
If you’ve been arrested and are being held in custody anywhere in Greater Melbourne, contact Garde Wilson Lawyers immediately and one of our criminal law experts can be with you in person to represent you before the police, and if necessary, in court to secure your bail release.