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:
- A prison sentence is not a prescribed punishment for the offence committed
- If punishable by a prison sentence, that sentence would not be in excess of 6 months
- The offence was a breach of the peace
- The arrest was due to a failure to comply with a subpoena or a summons
- The offender is attending a hearing or trial due to a habeas corpus order being granted
Whilst it appears there are lots of circumstances where bail is likely to, and should be, granted, there are also caveats to these, and scenarios where even if any of the above apply, bail may be refused. These include:
- A previous or likely failure to attend court
- The applicant is currently serving a prison sentence for another conviction
- The applicant has previously breached the conditions of bail
- The applicant is incapacitated due to drug use, alcohol, an injury, in physical danger, or requires physical protection
- The risk of the applicant interfering with witnesses
- Possible danger to safety of another party or property
- To protect the applicant
- The applicant is a possible flight risk.
When we mention court, primarily it will the magistrate’s court where most bail hearings will be held. An accused should be brought before the court without undue delay for a bail application to be made. The accused’s lawyer will apply for bail to be granted, then the prosecutor will outline to the court details related to the offence, and any other relevant information, such as the offender’s criminal record.
If the prosecutor has no objection to bail, there is no guarantee that it will be granted by the magistrate as the magistrate has discretion to refuse bail. However, if there are issues for concern the magistrate may call the arresting police officer and defence counsel to present further submissions.
For example the accused’s lawyers may make submissions relating to their client’s good character, their home life, their standing in the community, employment, capacity to comply with bail. They can also give counterarguments to any of the evidence that has been presented in court by the prosecutor.
It will also be the role of the lawyer to make a submissions to the court on surety which is when someone known to their client is willing to make a deposit of cash or other security in order to support the bail application.
After all the submissions from the prosecutor and the defence lawyer are heard the magistrate will make their decision on whether bail has granted or refused, and the conditions which apply, if it has been granted. For example there may be a specified sum of money attached to the bail which may be forfeited if the accused breaches bail. Other bail conditions include residing at a bail address, keeping a specified distance from a victim, refraining from contacting certain people or complying with home detention or a curfew.