What Happens at Court in Relation to Bail Procedure?
The bail procedure in Victoria is as follows; if the police informant or a bail justice has refused to grant bail, the accused must be brought before a court following their arrest and interview for a remand hearing to occur. A remand hearing is just an opportunity for the matter to be listed for a mention at court before a Magistrate or a Judge to determine whether the matter will proceed as a bail application, plea of guilty or be adjourned to another date.
The first thing that will occur is a defence lawyer and the police prosecutor will discuss whether bail will be formally opposed. The primary goal of a defence lawyer is always to convince the opposing side not to oppose the granting of bail.
Whether or not the bail application is opposed does not prevent a criminal lawyer from running bail, if it is opposed, it just makes it more challenging.
The following general principles apply in relation to the bail procedure in Victoria:
- In general, the standard of proof is on the balance of probabilities.
- The police informant or corroborator must be present (unless a nominal informant is appearing or it is agreed by both parties that the matter can proceed on the reading of the remand summary unless dealing with a Supreme Court application).
- The court can consider any evidence that appears to be relevant and can take into account hearsay evidence (R v Sanghera [1983] 2 VR). The court can make such enquiries “…of and concerning the Accused as the court considers desirable” (s8(a) of the Bail Act 1977).
- The prosecution presents its case setting out the reasons why bail is opposed, usually by calling the police informant. The defence then has the opportunity to cross-examine any witnesses relied upon by the prosecution.
- The prosecution must also inform the court what the relevant threshold for bail is, the three thresholds are, unacceptable risk, compelling reasons (now replacing “show cause) and exceptional circumstances.
- The police, usually through the police informant, will disclose to the court whether the accused has prior convictions or has previously failed to appear, as well as the circumstances of the current offending.
What if I am Pleading Not Guilty in relation to Bail?
At a bail hearing, the strengths and weaknesses of the prosecution case are only one relevant factor amongst many that must be considered in relation to bail. Defence lawyers are always at a disadvantage when trying to make out this ground because it is unusual for police to have disclosed all the evidence. An accused person can give evidence to assist their own application but cannot be cross-examined about the alleged offending. If the accused was to inadvertently make a confession or admission at the bail hearing this will not be admissible at a later date.
See, for example, R v Kathleen Therese MacBain (Unreported, County Court of Victoria, Kimm J, 10 October 2000), in which the trial judge admitted to evidence confessions made by the accused at her bail hearing. Later, the Court of Appeal held that the confession should not have been admitted into evidence.
If you require a bail application for yourself or a loved one, you would be well advised to retain experienced lawyers who routinely run bail applications. Dribbin & Brown Criminal Lawyers appear in court every day and run multiple bail applications each week. If you or a loved one need assistance, call our local office number, or if the enquiry is after hours, call the after-hours line on (03)8644 7333 to determine if we can help you.
