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Chapter 9: Custody and Bail

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Most of the material in this chapter is also relevant to other Victorian courts.

This chapter commences with a summary of the major amendments to the Bail Act 1977 which came into operation in 2018. It then lists those provisions of the Bail Act and the Children, Youth and Families Act 2005 which set out the duties & powers of an arresting police officer, a court and a bail justice in relation to a child who has been taken into custody. It continues with a summary of the legislative differences between bail applications for adults and those for children.

The chapter then sets out the large number of statutory exceptions to the rule that a person has a prima facie entitlement to bail, these including cases where-

  • the accused is required to show exceptional circumstances;
  • the accused is required to show a compelling reason;
  • the prosecution has demonstrated that the accused is an unacceptable risk;
  • the case is adjourned for further inquiries or pre-sentence report.

Statutory flow charts demonstrate the tests which a bail decision maker must apply in various circumstances to decide whether to grant bail to a person. Numerous cases are discussed to demonstrate the application of the above tests, including cases illustrating the relevance of Aboriginality, youth and the Charter of Human Rights and Responsibilities Act 2006. The chapter concludes with a miscellany of matters relevant to bail, including-

  • whether the principle of parity applies to bail applications;
  • evidence in bail applications;
  • bail undertakings, conduct conditions and sureties;
  • extension, variation, revocation and breach of bail; and
  • bail support programs in the Children’s Court.
Download Chapter 9 here

Author: former Magistrate Peter Power
Place of Publication: Melbourne, Australia
Publisher: Children's Court of Victoria
Date of Publication: 21 February 2023 
Number of Pages: 180
Copyright: State of Victoria, 2021