Victorian Consolidated Legislation

Bail Act 1977 - SECT 4

Accused held in custody entitled to bail

4. Accused held in custody entitled to bail



(1) Any person accused of an offence and being held in custody in relation to
that offence shall be granted bail-

   (a)  if it is not practicable to bring him before a bail justice or the
        Magistrates' Court within 24 hours after he is taken into custody;

   (b)  during any postponement of the hearing of a charge for the offence or
        whilst he is awaiting trial; or

   (c)  where his case is adjourned by a court for inquiries or a report or
        whilst he is awaiting sentence except where the court is satisfied
        that it would not be desirable in the public interest to release the
        accused pending completion of the inquiries or receipt of the report
        or pending sentence.

(2) Notwithstanding the generality of the provisions of subsection (1) a court
shall refuse bail-

   (a)  in the case of a person charged with treason or murder except in
        accordance with section 13;

   (aa) in the case of a person charged with-





   (i)  an offence under section 71, 71AA, 72 or 72A of the
        Drugs, Poisons and Controlled Substances Act 1981 or an offence of
        conspiring to commit any of those offences under section 79(1) of that
        Act; or

   (ia) an offence of trafficking in relation to a commercial quantity of a
        drug of dependence under section 71 of the
        Drugs, Poisons and Controlled Substances Act 1981 as in force
        immediately before the commencement of the Drugs, Poisons and
        Controlled Substances (Amendment) Act 2001 or an offence of
        cultivating a narcotic plant under section 72 of that Act in
        circumstances where the offence is committed in relation to a quantity
        of a drug of dependence that is not less than the commercial quantity
        applicable to that narcotic plant or an offence of conspiring to
        commit either of those offences under section 79(1) of that Act; or

   (ii) an offence under section 231(1), 233A or 233B(1) of the
        Customs Act 1901 of the Commonwealth as in force immediately before
        the commencement of the
        Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005
        of the Commonwealth in circumstances where the offence is committed in
        relation to narcotic goods within the meaning of that Act in respect
        of a quantity that is not less than the commercial quantity (as
        defined in section 70(1) of the
        Drugs, Poisons and Controlled Substances Act 1981) applicable to the
        drug of dependence constituted by those narcotic goods; or

   (iii) an offence under section 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9
        of the Criminal Code of the Commonwealth in circumstances where the
        offence is committed in relation to a substance in respect of a
        quantity that is not less than the commercial quantity (as defined in
        section 70(1) of the
        Drugs, Poisons and Controlled Substances Act 1981) applicable to the
        drug of dependence as defined in that Act constituted by that
        substance-

* * * * * unless the court is satisfied that exceptional circumstances exist
which justify the grant of bail;

   (b)  if the accused is in custody pursuant to the sentence of a court for
        some other cause;



* * * * *



   (d)  if the court is satisfied-

   (i)  that there is an unacceptable risk that the accused if released on
        bail would- fail to surrender himself into custody in answer to his
        bail; commit an offence whilst on bail; endanger the safety or welfare
        of members of the public; or interfere with witnesses or otherwise
        obstruct the course of justice whether in relation to himself or any
        other person;

* * * * *





   (iii) that it has not been practicable to obtain sufficient information for
        the purpose of deciding any question referred to in this subsection
        for want of time since the institution of the proceedings against him.

(2A) Despite subsection (2)(b), a court is not required to refuse bail in the
case of an accused who is serving a sentence of imprisonment for some other
cause but any bail granted must be subject to the condition that the person
will not be released on bail before he or she is entitled to be released under
a parole order made, or which may be made, in respect of him or her;

(3) In assessing in relation to any event mentioned in subsection (2)(d)(i)
whether the circumstances constitute an unacceptable risk the court shall have
regard to all matters appearing to be relevant and in particular, without in
any way limiting the generality of the foregoing, to such of the following
considerations as appear to be relevant, that is to say-

   (a)  the nature and seriousness of the offence;

   (b)  the character, antecedents, associations, home environment and
        background of the accused;



   (c)  the history of any previous grants of bail to the accused;





   (d)  the strength of the evidence against the accused;



   (e)  the attitude, if expressed to the court, of the alleged victim of the
        offence to the grant of bail.

(4) Where the accused is charged-





   (a)  with an indictable offence that is alleged to have been committed
        while he was at large awaiting trial for another indictable offence;

   (b)  with an offence against section 21A(1) of the Crimes Act 1958
        (stalking) and-





   (i)  the accused has within the preceding 10 years been convicted or found
        guilty of an offence against that section in relation to any person or
        an offence in the course of committing which he or she used or
        threatened to use violence against any person; or

   (ii) the court is satisfied that the accused on a separate occasion used or
        threatened to use violence against the person whom he or she is
        alleged to have stalked, whether or not the accused has been convicted
        or found guilty of, or charged with, an offence in connection with
        that use or threatened use of violence; or

   (ba) with an offence against section 37 or 123 of the
        Family Violence Protection Act 2008 of contravening a family violence
        intervention order or family violence safety notice (as the case
        requires) in the course of committing which the accused is alleged to
        have used or threatened to use violence and-

   (i)  the accused has within the preceding 10 years been convicted or found
        guilty of an offence in the course of committing which he or she used
        or threatened to use violence against any person; or

   (ii) the court is satisfied that the accused on a separate occasion used or
        threatened to use violence against the person who is the subject of
        the order, whether or not the accused has been convicted or found
        guilty of, or charged with, an offence in connection with that use or
        threatened use of violence; or

   (bb) with an offence against section 32 of the
        Stalking Intervention Orders Act 2008 of contravening an order in the
        course of committing which the accused is alleged to have used or
        threatened to use violence and-

   (i)  the accused has within the preceding 10 years been convicted or found
        guilty of an offence in the course of committing which he or she used
        or threatened to use violence against any person; or

   (ii) the court is satisfied that the accused on a separate occasion used or
        threatened to use violence against the person who is the subject of
        the order, whether or not the accused has been convicted or found
        guilty of, or charged with, an offence in connection with that use or
        threatened use of violence; or

   (c)  with an offence of aggravated burglary under section 77 of the
        Crimes Act 1958 or any other indictable offence in the course of
        committing which the accused or any person acting in concert with the
        accused is alleged to have used or threatened to use a firearm,
        offensive weapon, or explosive within the meaning of the said section
        77; or

   (caa) with an offence of arson causing death under section 197A of the
        Crimes Act 1958; or



   (ca) with an offence under section 71AB, 71AC or 72B of the
        Drugs, Poisons and Controlled Substances Act 1981 or an offence of
        conspiring to commit any of those offences under section 79(1) of that
        Act;





   (cab) subject to subsection (2)(aa), with an offence of trafficking in a
        drug of dependence under section 71 of the
        Drugs, Poisons and Controlled Substances Act 1981 as in force
        immediately before the commencement of the Drugs, Poisons and
        Controlled Substances (Amendment) Act 2001 or an offence of
        cultivating a narcotic plant under section 72 of that Act or an
        offence of conspiring to commit either of those offences under section
        79(1) of that Act;

   (cb) subject to subsection (2)(aa), with an offence under section 231(1),
        233A or 233B(1) of the Customs Act 1901 of the Commonwealth, as in
        force immediately before the commencement of the
        Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005
        of the Commonwealth, in relation to a commercial or trafficable
        quantity of narcotic goods within the meaning of that Act; or

   (cc) subject to subsection (2)(aa), with an offence under section 307.1,
        307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code of the
        Commonwealth; or

   (d)  with an offence against this Act-

the court shall refuse bail unless the accused shows cause why his detention
in custody is not justified and in any such case where the court grants bail
the court-

   (i)  if constituted by a judge or magistrate, shall include in the order a
        statement of reasons for making the order; or

   (ii) in any other case, shall, as prescribed by regulations, record and
        transmit a statement of reasons for making the order.

(5) In granting bail a court may impose conditions in accordance with section
5.