Bail Applications:

Bail is simply authorization to be at liberty instead of in custody. Generally, when you are arrested for an offence, you will need to be granted bail in order to be released from custody pending the hearing of your case before a Court (which could be weeks or months from the time of arrest). Applications for bail are heard by a Court. However, police officers do have the power to grant bail at certain times and under some circumstances (for example, grant of police bail after a charge for a minor offence).

Different criterion applies to different criminal offences. Each offence falls into one of six categories for the purposes of bail, namely:

• There is a right to release on bail (generally for minor offences)
• There is a presumption against bail
• There is a presumption in favour of bail
• There is no presumption either way
• There is an exception to the presumption in favour of bail
• Bail is only granted in exceptional circumstances

Decisions to grant bail should usually be made as soon as reasonably practical. The reason for this stems from the nature and fundamental principles of our justice system, including the presumption of innocence and the right to liberty.

Generally, after a person has been arrested and charged, the police will make a decision as to whether or not to grant bail. Usually the police officer who makes the decision is the Sergeant of police or an officer in charge of the police station at the time. The police officer can make a determination as to whether or not to grant bail and with what conditions.

In circumstances where the police officer refuses to grant bail after charging an individual with an offence, that person will remain in police custody pending the bail matter being brought before a Court, at which time a formal bail application can be made. It is crucial that you have an experienced Criminal Attorney who comprehensively understands the law regarding bails to make your formal bail application. An experienced Sydney Criminal Attorney will know what arguments to put forward to the Court so that your case is presented in the best possible light. Bail applications are very serious. Whilst no guarantees can be givedn, the proper presentation of your bail application will ensure that you have a higher chance of being granted freedom rather than serve gaol time.

In very borad terms, in deciding whether or not to grant bail, the Court must turn their attention to four principal tests:

• The probability of the accused appearing in Court (In determining this, the Court is to take into account, amongst other things, the person’s background and community ties as indicated by the history and details of that person’s residence, employment and family situations. References provided by employers and family members are often presented to the Court as evidence of the person’s character.)
• The interests or needs of the accused
• The interests to be considered include the needs of the person to be free to obtain legal advice.
• The protection of victims or their close relativesThis test was inserted into legislation as part of a rising concern over the effect bail had on victims of violence, particularly in domestic violence situations)
• The protection and welfare of the community

Amongst other things, the Court is to have regard to the nature and seriousness of the offence and the likelihood of the person interfering with evidence.

Some criminal law matters, especially those involving serious criminal offences, can take months if not years to process in Court. It is therefore vital that you retain the services of an experienced Criminal Attorney to conduct your bail applications so that you have the best chance of success.

The Court and police officers have the power to grant bail with or without specific conditions being imposed. However, there are two conditions which are always imposed when bail is granted:

• You undertake to appear before the Court on the next Court date
• You undertake to notify the Court if you change your residential address
• Other conditions which may be imposed include the following:
• That you reside at a specified address
• That you report to the nearest police station on a specified basis (this could be daily or once a week for example)
• Abiding to curfew
• That you surrender your passport (your Criminal Attorney will usually ask you to bring your passport to the bail application)
• That you not to approach any witness involved in the case
• That you forfeit an amount of money if you breach the bail conditions (cash bails)

The conditions imposed on the grant of bail cannot be taken lightly. A breach without an acceptable excuse will normally mean that you will be arrested and brought before the Court. The Court will likely refuse to grant bail again if you have no reasonable cause to breach your bail conditions. This means that you will placed in jail until your criminal matter is heard in Court.

Current laws make it difficult to appeal against unsuccessful bail applications. Unless there are grounds for a further application, a Court is to refuse to entertain an application for bail if an application has already been made. The grounds are very limited and it is therefore crucial that you get the right legal representation the first time round.