LawTalk Blog

Bail applications – get it right first time

criminal and traffic offences

A person who is in custody because they have been charged with a criminal or traffic offence may apply to be released on bail.  Bail is an agreement that a person makes to the court.

It is a promise to the court that they will be present throughout all court proceedings, that they will comply with the conditions that are stipulated on the bail agreement and if they do not comply, without proper excuse, they will forfeit to the Crown a monetary sum that is stipulated in the agreement.

Further if you do not comply with your bail agreement you may be refused bail on the next occasion and may be remanded in custody awaiting the result of your trial.

When you are arrested for a criminal offence you have the opportunity to apply for bail at the police station.  If a person is not released on bail by the police then they will be brought before a court as soon as reasonably practical.  If you are refused bail outside court sitting hours (Monday to Friday about 9.30 am to 4.00 pm) then you can request a telephone review by a Magistrate.  The on-call Magistrate will receive the information from the police and make a decision about whether or not you should be released on bail.

However the normal course of things is that you will appear before a court.  You will then have the right to make an application for bail before a Magistrate.

It is important that you have legal representation because you only have one shot at bail.  Once you are refused bail by a Magistrate, that is it.  You cannot apply again unless there has been a change in your circumstances or if you review the Magistrate's decision in the Supreme Court. 

A change in circumstance could be:

  • a different and more suitable address;
  • an ability to comply with more stringent conditions like home detention;
  • having a guarantor or lodging a cash surety; or
  • new evidence.

You cannot reapply for bail in the Magistrates Court to see if another Magistrate will have a different view.  There needs to be a significant change to when your first made you bail application.

If you do not have a change in your circumstances and need a review in the Supreme Court it is important to be aware that this can be a more complicated, challenging and costly process than just getting a solicitor in the first instance. 

There is a presumption of bail pursuant to the Bail Act 1985.  This reflects the important principle that a person is innocent until proven guilty.

  • The factors that a court will consider involve:
  • the seriousness of the offence;
  • the protection of any alleged victims or witnesses;
  • criminal history
  • if there is a history of non-compliance with bail;
  • protection of the community;
  • risk of re-offending;
  • risk of the defendant absconding; and
  • the personal circumstances of the defendant.

If you fall within certain categories, you become a prescribed applicant and the onus is reversed and you have the presumption against bail.  Some examples are:

  • When you are on bail for a matter involving an alleged victim and it is a condition of your bail agreement that you do not contact them and you breach your bail agreement by contacting that person;
  • If you breach an intervention order (confirmed or still before the courts) when the breach involves threats or violence;
  • Blackmail offences; and
  • Serious firearms offences.

When you fall into one of these categories you must establish that special circumstances exist that warrant your release on bail.  Whilst there is no set list of what would be found to be special circumstances, in my experience it may be a combination of any of the following:

  • trivial breaches of bail;
  • the strength of the prosecution case;
  • whether the defendant has any prior criminal history;
  • personal circumstances relating to the defendant like poor health; or
  • the need to care for dependants.

Everything mentioned in this article makes having a solicitor all the more important.  This may be the only time you have made an application for bail, whereas I can't recall how many bail applications I have made which I feel puts me in good stead to be intensely driving this advice home.

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