What is Bail?
Bail is a process whereby an arrested person is released from custody while awaiting trial or during the course of a trial.
Simply put, bail is a signed written promise that you will come to Court on your next court date and that you will not commit further offences. This written promise is called a ‘bail undertaking’. Sometimes, you will need to make further promises to the Court and those promises are called ‘bail conditions’. Bail conditions can include:
- Reporting to police multiple times a week;
- Surrendering your passport;
- Not having contact with certain named persons.
Who has the power to grant bail?
If you have been arrested and charged with a criminal offence, the police may decide to grant you bail from the watchhouse. Once you have signed your bail undertaking, you will be released back into the community with the expectation that you will come to Court on the date listed on your undertaking. If you fail to attend Court on that date, a warrant may be issued for your arrest.
If police refuse to grant you bail from the watchhouse, they must give you a written explanation of their refusal and you will be brought before the Court the next sitting day for a bail application.
A bail application is where you make a formal application to the Court to be granted bail. It is important that you speak with a lawyer before you make a bail application. If you cannot afford a private lawyer, a duty lawyer is sometimes available in the courthouse. Once you have been granted bail by the Court, police must release you after you have signed a bail undertaking.
Will the Court grant me Bail?
The Court will generally grant you bail unless the Court believes that there is an unacceptable risk that if released from custody, you will:
- fail to appear and surrender into custody; or
- commit an offence; or
- endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or
- interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else.
In deciding if there is an ‘unacceptable risk’, the Court will consider a number of factors such as:
- The type of the offence/s you have been charged with;
- The seriousness of that/those offence/s;
- Whether you identify as ATSI;
- Your criminal history (or lack thereof);
- Whether you have stable and secure accommodation;
- The strength of the police’s evidence against you;
- Your personal background;
- Your previous performance (if any) while on bail;
- Whether you have committed offences while currently on bail for other offences;
- Whether any bail conditions can ameliorate any unacceptable risk identified.
If the Court refuses to grant you bail, you will not be able to bring another bail application until there has been a ‘change in circumstances’. What this means is, your position must have changed from when you first applied for bail. For this reason, it is important that you speak to a lawyer before you make an application for bail. Our team of experienced criminal lawyers will be able to give you the advice you need.
Can I get bail for more serious offences?
If you have been charged with more serious offences, the Court may still decide to grant you bail however, some offences (such as murder) will need to be decided in the Supreme Court. If you have been charged with a serious offence, call one of our criminal lawyers to get tailored advice for your situation.