What Is The Bail Application Process?

If a person is charged with an offence they may need to apply for bail. Bail is the process by which someone who has been arrested or charged with a crime, is released from custody. A person who is granted bail signs a bail undertaking making them legally bound to attend court when required. Failure to attend court may result in a bench warrant being issued leading to arrest.

An accused should speak with a lawyer before applying for bail to ensure all relevant details are presented to the court and avoid the risk of bail being refused.

The law and processes under which bail is applied for, considered, and granted is unsurprisingly known as the ‘Bail Act‘. The Bail Act categorises offences and those offenders who have been charged with them, based on their seriousness.

The seriousness of the offence plays a huge role in determining whether someone is granted bail or not.

Bail is at the discretion of the court and is primarily granted where the offences are deemed to be less serious and there are several of these offences outlined in the Bail Act. Rather than list every possible offence here the Act specifies where offenders have the right to release on bail. Examples of these include offences where any of the following apply:

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Criminal Law  
Common Assault – Section 313 - Criminal Code

s 313 – Common Assault

  1. Any person who unlawfully assaults another is guilty of a simple offence and is liable –
    1. if the offence is committed in circumstances of aggravation, to imprisonment for 3 years and a fine of $36,000; or
    2. in any other case, imprisonment for 18 months and a fine of $18,000.

Elements of the Offence

  • In order to be convicted of this offence you must be found to have assaulted another person.
  • “Assault” is defined in section 222 of the Criminal Code as:
    • A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
  • “Applies force” is also defined in section 222 of the Criminal Code as including:
    • Applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

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Distributing Child Exploitation Material - Section s 219 - Criminal Code

s 219 – Distributing Child Exploitation Material

  1. In this section –

Distribute child exploitation material, includes –

  1. Communicate, exhibit, sell, send, supply, offer or transmit child exploitation material to another person, or enter intro agreement or arrangement to do so; or
  2. Make child exploitation material available for access by electronic or other means by another person, or enter into an agreement or arrangement to do so.
  1. A person who distributes child exploitation material is guilty of a crime and is liable to imprisonment for 10 years.
  2. A person who has possession of child exploitation material with the intention of distributing the material is guilty of a crime and is liable to imprisonment for 10 years.

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Criminal Law, Criminal Offence   , ,
Distributing Child Exploitation Material - Section s 219 - Criminal Code

s 218 – Producing Child Exploitation Material

  1. A person who produces child exploitation material is guilty of a crime and is liable to imprisonment for 10 years.

Elements of the Offence

  • In order to be convicted of this offence you must be found guilty of producing child exploitation material.
  • “Child exploitation material” is defined in section 217A of the Criminal Code as:
    • Child pornography; or
    • Material that, in a way likely to offend a reasonable person, describes, depicts or represents a person ,or part of a person, who is, or appears to be a child –
      • In an offensive or demeaning context; or
      • Being subjected to abuse, cruelty or torture (whether or not in a sexual context);
    • “Child pornography” means material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or a part of a person, who is, or appears to be a child –
      • Engaging in sexual activity; or
      • In a sexual context;
    • “Material” includes –
      • Any object, picture, film, written or printed matter, data, or other thing; and
      • Any thing from which text, pictures, sound or data can be produced or reproduced, with or without the aid of anything else;
    • “Picture” includes an image, whether or not it is a computer generated image.
  • This offence is strictly limited to where the offender has produced the child exploitation material. If the offender has not made the child exploitation material but has it in their possession, they may instead by charged with possession of child exploitation material.
  • If you have producing child exploitation material and you have also given the child exploitation material to other parties you may be charged with distributing child exploitation material.

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Criminal Law, Criminal Offence   ,