The issue of bail is an important step in the Criminal Process. It is clearly advantageous to be on bail and in the community while you await your trial. Aside from the impact on family and employment prospects a refusal of bail can make trial and/or sentence preparation problematic.
Prison conferences with legal representatives are often limited in duration and proper preparation for trial is difficult. Whilst on bail professional counselling, rehabilitation and other programs can be undertaken which will assist with the sentencing process.
Generally an Application for bail, once refused, cannot be reheard unless there is a change in circumstances. It is imperative that a proper Application is structured at the first available opportunity as a refusal by a Magistrate will likely see delay and expense in having the matter listed in the Supreme Court.
A grant of bail can attach conditions that restrain your liberty. The court can dictate where you live, with whom you may associate and how frequently you need to report to the police. They can also restrain you from leaving the country, the state or even your home. For some offences, you can also be restrained from entering particular places.
Gatenby Criminal Lawyers regularly appears in relation to bail applications and appreciates the complexities of the bail application. We understand the legislation and will assist you to obtain bail.
If you or someone you know is seeking an Application for Bail you should seek professional advice from Gatenby Criminal Lawyers.
The starting position in relation to bail is found in section 9 of the Bail Act, which relevantly provides that:
Where a person held in custody on a charge of an offence of which the person has not been convicted appears or is brought before a court empowered by section 8 to grant bail to the person in relation to that offence, the court shall, subject to this Act, grant bail to that person or enlarge or vary bail already granted to the person in relation to that offence.
Section 11 of the act, however, narrows this position by providing:
(2) Where a court or a police officer authorised by this Act to grant bail considers that the imposition of special conditions is necessary to secure that a person—
- (a) appears in accordance with the person’s bail and surrenders into custody; or
- (b) while released on bail does not—
- (i) commit an offence; or
- (ii) endanger the safety or welfare of members of the public; or
- (iii)interfere with witnesses or otherwise obstruct the course of justice whether in relation to the person or another person;
that court or police officer shall impose such conditions as the court or police officer thinks fit for any or all of such purposes.
(3) Without limiting subsection (2), a special condition may prohibit a person from doing, or attempting to do, any of the following while the person is released on bail—
- (a) entering or remaining in stated licensed premises or a stated class of licensed premises;
- (b) entering or remaining in, during stated hours, a stated area that is designated by its distance from, or location in relation to, the stated licensed premises or stated class of licensed premises mentioned in a special condition imposed under paragraph (a);
Examples of special conditions for paragraph (b)—
- a special condition that prohibits a person from entering or remaining in, between the hours of 10p.m. and 6a.m., an area that is within 10m of stated licensed premises mentioned in a special condition imposed under paragraph (a)
- a special condition that prohibits a person from entering or remaining in, between the hours of 11p.m. and 5a.m., a stated street, or an area abutting several stated streets, that is located near stated licensed premises mentioned in a special condition imposed under paragraph (a)
- a special condition that prohibits a person from entering or remaining in, between the hours of 11p.m. and 5a.m., the drink safe precinct under the Liquor Act 1992 in which the stated licensed premises mentioned in a special condition imposed under paragraph (a) are located
- (c) attending or remaining at a stated event, to be held in a public place, at which liquor will be sold for consumption
Section 16 details the circumstances in which the court can refuse bail
- 1) Notwithstanding this Act, a court or police officer authorised by this Act to grant, bail shall refuse to grant bail to a defendant if the court or police officer is satisfied—
- a) that there is an unacceptable risk if the defendant released on bail—
- i) would fail to appear and surrender into custody; or
- ii) would while released on bail—
- (A) commit an offence; or
- (B) 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
- (C) interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
- (D) that the defendant should remain in custody for the defendant’s own protection.
- a) that there is an unacceptable risk if the defendant released on bail—
- 2) In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court or police officer shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant—
- (a) the nature and seriousness of the offence;
- (b) the character, antecedents, associations, home environment, employment and background of the defendant;
- (c) the history of any previous grants of bail to the defendant;
- (d) the strength of the evidence against the defendant;
- (e) if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—
- (i) the defendant’s relationship to the defendant’s community; or
- (ii) any cultural considerations; or
- (iii) any considerations relating to programs and services in which the community justice group participates.
- 3) Where the defendant is charged—
- a) with an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant’s apprehension and the date of the defendant’s committal for trial or while awaiting trial for another indictable offence; or
- b) with an offence to which section 13 applies; or
- c) with an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or
- d) with an offence against this Act; or
- e) with an offence against the Criminal Organisation Act 2009, section 24 or 38; or
- f) with an offence against the Criminal Code, section 359 with a circumstance of aggravation mentioned in section 359(2);
the court or police officer shall refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified and, if bail is granted or the defendant is released under section 11A, must include in the order a statement of the reasons for granting bail or releasing the defendant.
- (4) In granting bail in accordance with subsection (3) a court or police officer may impose conditions in accordance with section 11.
If you, a friend or relative is being remanded in custody you should contact Gatenby Criminal Lawyers so that we can provide you with strategic advice about how to best present your Bail Application.