Bail applications are made following a person arrest and charge for a criminal offence
Initially, if a person is arrested and charged by the police, the police will make the decision on whether or not bail should be granted to the person.
Police bail may be conditional, or it may be without conditions.
Once refused bail by the police, a person will be taken to a Court as soon as possible so that a Magistrate can decide whether or not to grant that person bail.
However, if a Magistrate decides not decide to grant bail, then the person will remain in custody, and refused bail, until the matter for which they have been charged is finalised.
When a decision is made by a Magistrate in the Local Court to refuse a person bail, then they cannot apply for bail again in the local court unless they can prove to the court that there are new grounds or fresh circumstances.
Importantly, a person who has already applied for bail in the Local Court must be able to show that there has been a change in circumstances or there are new grounds to apply for bail again in the Local Court. Otherwise their only option is to make a bail application to the Supreme Court.
What Is Bail?
The decision of Court whether or not to release someone after they have been charged with an offence and bail refused, is known as a bail determination. These determinations are made once a bail application is made by the person who has been bail refused by police.
A common misconception is that bail applications and bail require an amount of money to be forfeited to the Court, known as sureties. However, sureties are are just one of a number of conditions of release a Court can impose when granting on bail.
Courts are required to consider on a bail application whether or not to grant a person bail. In bail determinations made by both the Police and the Courts, there is a balancing exercise conducted between the threat a person may pose to the community and that individual’s right to freedom and liberty.
For most offences, if there are conditions which can mitigate against the risks a person poses to the community, they will be given bail.
Show Cause Offences
Some offences are so serious, or are committed in circumstances which make them more serious, that they have a presumption against bail.
These offences are known as show cause offences.
As a result, in all bail applications for a show cause offence, a person must show why their detention is not justified and that there are no unacceptable risks if they were to be released at liberty.
What Is Considered When Determining Bail Applications?
The Bail Act 2013 contains a comprehensive list of things that the court must consider when hearing a bail application. Some of these things are:
- The background of a person;
- A person’s criminal history;
- Whether the person has any community ties;
- The seriousness of the offence;
- Whether jail is a likely outcome or not;
- The strength of the prosecution case;
- The offence involves violence;
- If a person has breached bail before;
- Whether or not you’ve breach court orders before;
- Any previous instances where a person has failed to attend court;
- The time a person would spend in jail if refused bail;
- Any special needs or vulnerabilities they have;
- The need to be free in order to get legal help;
- Whether or not they have any criminal associations;
- Protection and safety of the community and victim.
Common Bail Conditions
The court can impose a number of conditions on a person granted bail, following a bail application. These conditions can restrict a person’s conduct or can involve giving the court an amount of money to ensure they will attend any future Court appearances.
Some common conditions imposed on bail are:
- Reporting to a police station;
- Curfews (e.g not leaving the house between certain hours);
- That you not attend certain places or areas;
- Not to speak to or contact certain people;
- A condition not to drink alcohol;
- Not to occupy the drivers seat of a car;
- The payment by an acceptable person of a surety to the court (e.g a monetary amount stipulated by the court);
- To live at a certain place; and
- Your attendance at court.
Has someone you know been refused bail?
It can be incredibly important to get advice and representation before making a bail application. Having the application for bail prepared and presented by an experienced criminal lawyer can often be the difference between bail being granted, or not.
The lawyers at Joshua Blom Lawyers have appeared in numerous local court bail applications and have the expertise to advise and guide you through the process.
Contact us now to see how we can help you