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Variation of bail

Information about how and when a person can have their bail conditions varied.

An accused person who has been granted bail may apply for a variation of the amount of bail or any bail conditions that have been ordered. They can do this whether they are in custody or not.

This process is called an application to vary bail.

See s. 18ACBail Act 1977 (Vic).

Note: A person also has the right to re-apply for bail if bail is refused or revoked.

See When bail is refused.

How to apply to vary bail conditions

If charged with murder or treason, the applications have to be made to the Supreme Court. Other applications for variation must be made to the court where the person is to attend and surrender themselves for the hearing.

Where bail has been granted by the Magistrates’ Court a person can apply to vary the conditions of their bail by submitting their application to the Court location which granted bail.

Applications to vary the conditions of bail are often made to:

  • change the person’s address when there is a conduct condition to live at a particular place
  • change curfew hours to allow the person to take up an employment opportunity.

The application to vary bail must be on Magistrates Court Form 11 which is available on the Magistrates’ Court website. The Court may also provide the person with a copy of the Form 11 to fill out.

The person must give the court, informant, and the prosecutor 3 days notice for the hearing of the application to vary. The Court will then give a date for hearing the application.

See s. 18AC(3)Bail Act 1977 (Vic).

The informant and prosecutor or DPP must also be told

The accused person has to notify the informant and either the prosecutor or the DDP if they are applying to vary their bail conditions or the amount of bail.

Usually they have to give the notice at least 3 days before the hearing.

The 3 day period can be waived if:

  • the court is satisfied that there is a good reason to justify the application being heard sooner, despite the limited notice, or
  • all parties agree to waive the 3 day period.

If the application is urgent, the person should ask the prosecuting authority if they agree to the application being heard sooner. If they do not agree, the person may apply to the court for the application to be heard sooner. This is called an application for 'an order dispensing with the notice requirement'.

See s. 18AK—Bail Act 1977 (Vic).

How the application will be decided

When a bail decision maker gets an application to vary a person's bail conditions they must take the surrounding circumstances into account. If, after looking at the relevant circumstances the decision maker believes that the application is reasonable they may vary the amount of bail or the bail conditions. If they find the application is not reasonable they may dismiss the application.

See s. 18AD—Bail Act 1977 (Vic).

Surrounding circumstances

The surrounding circumstances include but are not limited to:

  • the nature and seriousness of the alleged offence
  • whether the offence is a serious example of that offence
  • the strength of evidence against accused person
  • the criminal history of the accused
  • the extend to which the accused has complied with any previous bail conditions
  • if at the time of the offence the person was already:
    • on bail for another alleged offence
    • on summons to answer a charge for another offence
    • at large awaiting trial for another offence
    • on remand for another offence
    • at large awaiting sentence for another offence
    • on parole
    • subject to a CCO or otherwise serving a sentence for another offence
  • any family violence intervention orders, safety notices or recognised domestic violence orders in place against the accused
  • the personal circumstances of the accused, including their home environment and background
  • any special vulnerability of the accused including:
    • being an Aboriginal person
    • being a child
    • experienceing any ill health, including mental illness
    • having a disability including physical disability, intellectual disability and cognitive impairment
  • the availability of treatment or bail support services
  • the view of any alleged victim (on a grant of bail or bail condition)
  • how long the accused is likely to spend in prison if bail is refused while awaiting trial
  • the likely sentence that may be imposed if the accused is found guilty
  • whether the accused has publicly expressed support for a terrorist act or organisation, or has provided resources to a terrorist organisation.

See s. 3AAA, 18AD—Bail Act 1977 (Vic).

If person can't meet the bail conditions

Where person has been granted bail but is unable to meet the requirements within 24 hours, they may apply for variation of the amount or conditions of bail. Applications must be made to the original authorised decision-maker or to the Magistrates' Court.

It is very important to comply with bail conditions as penalties apply if these conditions are not met.

See s. 18AC(4)—Bail Act 1977 (Vic).

Bail guarantor has to be told

If the accused has a bail guarantor, they must be given notice in writing if the accused wants to appeal their bail conditions or vary the amount of bail. The bail guarantor is also permitted to attend the court hearing and to give evidence.

See ss. 18AI, 18AJ—Bail Act 1977 (Vic).

More information

Legislation

Bail Act 1977 (Vic).

  • s. 4—accused person held in custody is entitled to bail
  • Part 3—Further applications for bail, variation of bail conditions, revocation of bail
  • s. 18AC—application for variation of bail conditions
  • s. 18(3)—requires that for murder or treason charges, any further bail applications following revocation or refusal (subject to Criminal Procedure Act 2009 s. 144(2)(c)) to be heard in the Supreme Court
  • s. 18AC(3)—applications for variation of bail conditions are to be heard in the Supreme Court
  • s. 18AB—further bail applications following revocation or refusal are to be heard according to s. 4
  • ss. 18Al, 18AJ—rights and obligations in relation to the surety where an application for variation is made
  • s. 18AK—notice of application to be given to informant and either DPP or prosecutor

Criminal Procedure Act 2009 (Vic).

  • s. 144(2)(c)—before committing an accused person for trial, the magistrates court must remand that person in custody or grant bail until trial or a date fixed by the court

Updated