Victorian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

BAIL ACT 1977 - SECT 10

Power of police officer, sheriff or authorised person to grant or refuse bail

    (1)     This section applies if a person is arrested and it is not practicable to bring the person before a court immediately after the person is taken into custody or, if questioning or investigation under section 464A(2) of the  Crimes Act 1958 has commenced, immediately on the expiration of the reasonable time referred to in section 464A(1) of that Act.

S. 10(2) amended by No. 26/2017 s. 15(3).

    (2)     A police officer of or above the rank of sergeant or for the time being in charge of a police station, the sheriff or a person authorised under section 115(5) of the Fines Reform Act 2014 (as the case requires) must, without delay, consider whether to grant bail to the person in accordance with this Act.

    (3)     If the person is a child, the bail decision maker must ensure that a parent or guardian of the child, or an independent person, is present during the proceeding in relation to bail.

Note

See also section 5AA (conditions of bail granted to a child in certain circumstances).

    (4)     An independent person present in accordance with subsection (3) may take steps to facilitate the granting of bail, for example, by arranging accommodation.

S. 10(5) amended by No. 26/2017 s. 15(3).

    (5)     The police officer, the sheriff or person authorised under section 115(5) of the Fines Reform Act 2014 , in accordance with this Act, may grant or refuse bail.

Note to s. 10(5) substituted by No. 26/2017 s. 14(10), substituted as Notes by No. 3/2018 s. 23(6), substituted as Note by No. 32/2018 s. 90(1).

Note

Sections 13, 13AA and 13A specify circumstances in which only a court may grant bail. These circumstances relate to—

              •     certain instances in which the step 1—exceptional circumstances test applies;

              •     certain terrorism or foreign incursion offences;

              •     accused persons who have a terrorism record;

              •     persons accused of certain Schedule 2 offences who are already on 2 or more undertakings of bail in relation to other indictable offences.

S. 10(5AA) inserted by No. 32/2018 s. 90(2).

    (5AA)     The bail decision maker is prohibited from granting bail if the prosecutor

        (a)     states that the prosecutor has terrorism risk information in respect of the accused; and

        (b)     alleges that this information shows that there is a risk that the accused will commit a terrorism or foreign incursion offence.

S. 10(5A) inserted by No. 3/2018 s. 13(1), amended by Nos 3/2018 s. 23(5), 32/2018 s. 90(3).

    (5A)     If the bail decision maker is prohibited by subsection (5AA) or section 13, 13AA or 13A from granting bail to the arrested person, the bail decision maker must—

        (a)     refuse to consider whether to grant or refuse bail; and

        (b)     bring the person before a court as soon as practicable.

S. 10(5B) inserted by No. 3/2018 s. 13(1), amended by No. 3/2018 s. 24(1).

    (5B)     Subsection (5C) applies if a bail decision maker who is the sheriff or a person authorised under section 115(5) of the Fines Reform Act 2014 decides to grant bail but the person refuses to enter into an undertaking.

S. 10(5C) inserted by No. 3/2018 s. 13(1).

    (5C)     Despite subsection (2), the bail decision maker may take and safely convey the person to a bail decision maker who is a police officer for their consideration.

S. 10(6) substituted by No. 3/2018 s. 13(2).

    (6)     If bail is refused under subsection (5) and the arrested person is not a person to whom section 10AA applies, the bail decision maker must—

        (a)     endorse on the warrant, file or other papers relating to the arrested person or in any register or record of persons in custody the reasons for refusing bail; and

        (b)     if it is then within ordinary court sitting hours, cause the arrested person to be brought before a court as soon as practicable and advise the arrested person that they are entitled, should they so wish, to apply for bail when they appear before the court; and

        (c)     if it is then outside ordinary court sitting hours, advise the arrested person that they are entitled, should they so wish, to apply to a bail justice for bail and—

              (i)     if the arrested person wishes to so apply for bail, cause the arrested person to be brought before a bail justice as soon as practicable; or

              (ii)     if the arrested person does not wish to so apply for bail, cause the arrested person to be brought before a court as soon as practicable and advise the arrested person that they are entitled, should they so wish, to apply for bail when they appear before the court; and

        (d)     cause to be produced before the court or bail justice a copy of the endorsement mentioned in paragraph (a); and

        (e)     give the person a written statement setting out the provisions of this subsection and of subsection (5).

S. 10(6A) inserted by No. 3/2018 s. 13(2).

    (6A)     If bail is granted but the arrested person objects to the amount fixed for bail or any condition of bail, the bail decision maker must—

        (a)     advise the arrested person that they are entitled, should they so wish, to apply to a court or, if it is then outside ordinary court sitting hours, to a bail justice for variation of the amount of bail or conditions of bail; and

        (b)     give the person a written statement setting out the provisions of this subsection and of subsections (5), (7) and (8).

S. 10(6B) inserted by No. 3/2018 s. 24(2).

    (6B)     Subsection (6A) does not apply to a person arrested on an enforcement warrant issued under the Fines Reform Act 2014 .

S. 10(7) substituted by No. 3/2018 s. 13(3).

    (7)     Subsection (8) applies if the arrested person elects under subsection (6A) to apply for variation of the amount of bail or conditions of bail.

S. 10(8) inserted by No. 3/2018 s. 13(3).

    (8)     The bail decision maker must cause the arrested person to be brought before a court as soon as practicable or, if it is then outside ordinary court sitting hours, before a bail justice.

S. 10AA inserted by No. 3/2018 s. 14.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback