Bail Variation

What Is a Bail Variation?

If you have been granted bail in Victoria and your circumstances have changed in a way that makes it difficult or impossible to comply with one or more of your bail conditions, you may apply to the court for a bail variation. A bail variation is a formal application to change the conditions of your bail and is governed by s 18AC of the Bail Act 1977 (Vic).

Common reasons for seeking a bail variation include:

• A change of residential address , if you need to move, you cannot simply relocate without first obtaining a variation to any condition specifying your address
• The need to travel interstate or overseas , a condition prohibiting travel must be formally varied before you leave
• A change in employment or study arrangements that conflicts with a reporting condition
• A curfew condition that has become incompatible with work or family obligations
• A condition requiring you to surrender your passport when you need it for work or family reasons

It is not sufficient to simply notify police of a change in your circumstances and assume that is enough. If you fail to comply with a condition of bail , even for legitimate reasons , without first obtaining a formal variation, you risk being arrested under s 24 of the Bail Act 1977 (Vic) and having your bail revoked. The fact that you intended to apply for a variation does not protect you from the consequences of non-compliance. 

Who Can Apply for a Bail Variation?

Under s 18AC of the Bail Act 1977 (Vic), the following parties may apply to vary the conditions of bail:

• The accused , you may apply to have any of your bail conditions varied, relaxed, or removed
• The informant , the investigating officer or prosecuting authority may apply to add or tighten conditions 
• The Director of Public Prosecutions , the DPP may apply to vary conditions, including imposing conditions on bail that was originally granted unconditionally

This means that a bail variation application is not always made in your favour. Police or the DPP may apply to impose more restrictive conditions if circumstances change , for example, if there is a concern about contact with a witness or an alleged victim. It is important to obtain legal advice as soon as you receive notice of any application to vary your bail conditions.

Where Is the Application Made?

A bail variation application must be made to the court at which the accused is required to surrender , that is, the court at which the matter is listed. For example, if your matter is listed at Melbourne Magistrates’ Court, your bail variation application must be made at Melbourne Magistrates’ Court.

An exception applies for persons charged with murder or treason , those applications must be made to the Supreme Court of Victoria, regardless of where the matter is currently listed.

Notice to the Bail Guarantor

If there is a bail guarantor in place, the bail guarantor must be given notice of any bail variation application under s 18AI of the Bail Act 1977 (Vic). The bail guarantor is entitled to attend the hearing and to give evidence at the hearing of the application under s 18AJ of the Bail Act 1977 (Vic).

This is particularly relevant where the proposed variation would change the conditions under which the bail guarantor accepted their obligations , for example, if the variation would allow the accused to move to a different address or travel interstate, the bail guarantor may wish to be heard about whether they are still prepared to continue their guarantee under the changed conditions.

Notice of the application must also be given to the informant and either the DPP or the prosecutor under s 18AK of the Bail Act 1977 (Vic).

What Will the Court Consider?

In determining a bail variation application, the bail decision maker must take into account the surrounding circumstances as defined in s 3AAA of the Bail Act 1977 (Vic), and may have regard to:

• The seriousness of the charges
• The accused’s character, antecedents, associations, and general background
• The accused’s compliance with previous grants of bail , a good compliance history strengthens an application
• The alleged victim’s attitude, if known, to the proposed variation
• The nature of the proposed variation and the reason for it

Note: These are examples only. Under s 3AAA of the Bail Act 1977 (Vic), the bail decision maker must consider all circumstances relevant to the matter, and the list of factors is non-exhaustive.

The bail decision maker may vary the amount of bail or the conditions of bail if it appears reasonable to do so having regard to those circumstances (s 18AD of the Bail Act 1977 (Vic)).

A well-prepared bail variation application will include supporting evidence of the change in circumstances , for example, a letter from an employer confirming new employment requirements, a lease agreement confirming a change of address, or a letter from a medical professional where health circumstances are relevant.

What If the Application Is Opposed?

If the prosecution opposes the bail variation, the matter will be argued before the court. The accused must satisfy the bail decision maker that the proposed variation is reasonable in the circumstances. An experienced criminal lawyer can assist in preparing supporting material and making submissions in support of the application.

If the bail variation application is refused, you are not prevented from making a further application if your circumstances change again or if there is new material to put before the court.

What If I Simply Don’t Comply With a Condition?

If you choose not to comply with a bail condition without obtaining a variation, you risk having your bail revoked and being remanded in custody for the remainder of the proceedings. 

The importance of making a formal application rather than simply acting in breach of a condition cannot be overstated.

Frequently Asked Questions