Bail, remand and committal proceedings

Overview: Where Bail, Remand and Committal Fit

When a person is charged with a criminal offence in Victoria, a series of pre-trial procedures must occur before any trial can take place. Three of the most significant are bail, remand and committal proceedings. Together, these procedures reflect the principles of justice — particularly fairness (every accused deserves a presumption of innocence) and access (the system must be navigable without unreasonable barriers).

Understanding how these procedures interact requires understanding the court hierarchy. Most criminal matters begin in the Magistrates' Court of Victoria. Summary offences — less serious crimes such as minor assaults and traffic offences — are finalised there. Indictable offences — more serious crimes such as murder, rape or armed robbery — must be transferred to the County Court (which hears the majority of indictable trials) or the Supreme Court (which hears the most serious indictable matters). The mechanism that determines whether an indictable matter proceeds to a higher court is the committal proceeding.

Bail and remand operate as the immediate response to an accused being charged: does the person remain in custody until their matter is resolved, or are they released into the community under conditions? These decisions must balance the rights of the accused — including the right to liberty — against the safety of the community and the integrity of the justice process.

Bail: Meaning, Purposes and the Presumption

Bail is the conditional or unconditional release of an accused person from custody while their matter is before the courts. It is governed primarily by the Bail Act 1977 (Vic), which has been significantly amended over time — most recently by the Bail Amendment (Presumption Against Bail) Act 2023 (Vic), following recommendations arising from high-profile cases.

The general rule in Victoria is that an accused is presumed to be entitled to bail, but that presumption is not absolute. The Bail Act creates three categories of offences that carry different presumptions:

• Category A offences (show compelling reason): Offences such as murder, terrorism, treason and certain firearms offences where the accused must show compelling reason why their detention is not justified. This is an extremely high bar.
• Category B offences (show exceptional circumstances): Serious personal violence offences, armed robbery, aggravated home invasion and similar crimes where the accused must demonstrate exceptional circumstances justifying bail.
• Category C offences (unacceptable risk test): All other offences where bail is refused only if the court finds the accused poses an unacceptable risk — of failing to appear, of endangering others, of interfering with witnesses, or of committing further offences.

The purposes of bail include: (1) preserving the accused's liberty in line with the presumption of innocence; (2) ensuring the accused appears in court; (3) protecting the community; and (4) protecting the integrity of the investigation and any future trial.

Conditions commonly attached to bail include: reporting to a police station at specified times; surrendering a passport; residing at a specific address; observing a curfew; refraining from contacting particular persons (especially alleged victims); and providing a surety — a person who agrees to forfeit money if the accused fails to appear.

Applied example: In DPP v Hicks [2022] VMC (a hypothetical but structurally accurate illustration), an accused charged with aggravated burglary (a Category B offence) must demonstrate exceptional circumstances before bail can be granted. If they cannot do so, they remain on remand. This is consistent with Victoria's hardened approach to serious offences after repeated law reform following high-profile bail breaches.