The Bail / Release Process in Victoria
In Victoria, the bail and release process can vary depending on the type of offence you have been charged with. For very minor offences like the possession of small quantities of drugs or shoplifting, you will likely be released post-arrest with an undertaking to a peace officer. The undertaking will typically have conditions that you are required to comply with such as not to possess drugs, report to a probation officer, etc until the case is over. If your fingerprints are not taken at the time that you are arrested, you will also be given a date and time that you need to attend a police station for fingerprinting. In Victoria the location for fingerprinting is the main Victoria Police Headquarters at 850 Caledonia Avenue.
For other offences, you will not be able to leave custody without a formal bail hearing. For example, with most cases of domestic assault, sexual assault, and serious property and violent offences in Victoria, the police have a policy of requiring that a bail hearing be held either with a Judge or a Justice of the Peace before an individual is released.
If you’ve been arrested and kept in custody by a police officer, you’ll have the option to appear for a bail hearing as soon as possible. If the Crown prosecutor does not agree to your release, you have the right to a bail hearing (also called a “show cause” or “judicial interim release” hearing). You will probably want to have a lawyer help you with the hearing. You may have your own lawyer or a Legal Aid Duty Counsel represent you at your bail hearing that day, or you may agree to put your bail hearing off to a later time and remain in custody in order to obtain your own lawyer privately or through Legal Aid.
At the bail hearing, a judge will decide whether you should be released (on bail) or not and what you must agree to do if you are released.
The judge will look at three things when deciding on bail. First, the judge looks at the chance that you will not show up for your next court date. Second, the judge looks at whether you are likely to commit further crimes if released or if you are dangerous to the public. Finally, in some cases, the judge may not give you bail if he or she believes granting it would cause people to lose faith in the administration of justice.
At the bail hearing, the Crown prosecutor will tell the judge about your alleged involvement in the crime and about your criminal record, if you have one. You or your lawyer will tell the judge about yourself (your home, your family, where you work or go to school, etc.) and anything else that might help the judge to make a decision including weaknesses in the prosecution’s case and possible strategies you can put in place to ensure you are able to comply with any court orders.
If you’re released, your matter will be adjourned to a later date when you’ll make your plea or choose the court you want to be tried in. If you aren’t released, you’ll be held on remand until your matter is dealt with. If you are released, there will be conditions associated to that release, such as attending counselling and not contacting other individuals involved with the case. Should you be caught violating the terms of your release, you will be brought back into custody and will have a far lower likelihood of securing pretrial release after your breach. For spouses with children, this can create a logistical nightmare! That being said, the situation can be fixed, but often not until the matter goes back to court.