A person who is charged with a criminal offence will be placed in a position where they must attend Court to apply for bail in two circumstances: (1) when the offence they have been charged with is of a type that only a Court is permitted to release that person on bail; and (2) when a senior police officer or bail justice has refused to release a person they have charged with an offence on bail from the police station.
A person who is remanded and taken to Court can apply for bail immediately or can do so at a later point in time.
The timing of a bail application is very important. In some situations it may be best to proceed immediately, in other cases it is best to wait. An experienced criminal defence lawyer understands this and will help a person on remand come to a decision as to the best time to make their bail application.
There are many reasons why the timing of a bail application is important, the most significant being that once a person is refused bail it is very difficult to successfully apply for bail again in the future. Therefore, deciding not to run a bail application early when the circumstances of the case call for it, or alternatively running a bail application hastily which is not yet ready to proceed, can and often does result in bail being refused.
Unless a person can demonstrate new facts and circumstances or successfully appeal an initial decision to refuse bail, they will remain in custody until their trial is heard.
There are different bail tests depending on the offence with which a person has been charged. The three different tests for bail are:
Entitlement to bail - bail must be granted unless the prosecution is able to satisfy the Court that a person is an unacceptable risk of failing to attend Court, committing an offence, interfering with a witness or endangering the welfare of any person.
Compelling reasons – bail must be refused unless the accused person is able to satisfy the Court that compelling reasons exist that justify the granting of bail. If the accused person is able to satisfy the Court, the Court will then consider if that person is an acceptable risk.
Exceptional circumstances – bail must be refused unless a judicial officer is satisfied that exceptional circumstances exist that justify the granting of bail. If the accused person does satisfy the Court, the Court will then consider if that person is an acceptable risk.
As you can see, which bail test applies is an important consideration. It may make achieving bail very difficult (e.g. exceptional circumstances), or it may mean it is an exercise which focuses squarely on whether or not the risks associated with granting a person bail are acceptable (e.g. entitlement to bail).
An experienced criminal lawyer will be aware of which bail test is applicable. It will inform their advice, focus their preparation and impact the strategy they employ when running the application itself.
A bail application needs to be well prepared. It should be targeted and address any concerns the Court may have about releasing a person on bail.
If the Court considers a person to be an unacceptable risk of failing to attend Court, committing another offence, interfering with a witness or endangering the welfare of any person, they will be denied bail.
Accordingly, a criminal lawyer needs to anticipate what concerns the Court will have to ensure their application addresses the Court’s concerns so as to give a person the best chance of being granted bail. Depending on the circumstances of the case and the risk a person may pose, this will require evidence as to the availability of things that will reduce any of the potential risks that exist, such as:
Preparation is critical in ensuring the Court is provided with evidence supporting a person’s application for bail. Whether a lawyer arranges for a witness to attend Court to give evidence, obtains a report from an expert or a letter of support from employer, there are many things they will need to organise to give their client the best opportunity to successfully apply for bail.
If you are granted bail by the Court, there will be conditions that you have to abide by. If you are granted bail you will be required to come back to Court on a precise date and time. If you fail to do that or commit further offences while on bail, then your bail will be revoked.
Beyond these standard requirements you may be required to do any number of things including live at a certain address, report to a police station on a routine basis, abide by a curfew, surrender your passport, remain in Victoria or to participate in treatment.
If any of your bail conditions are breached, your bail may be revoked and you will be taken back into custody. If you are granted bail it is important to abide by the conditions of your bail.
Bail relates to a person’s freedom. It follows that it is important to have an experienced criminal lawyer in your corner.
Stary Norton Halphen’s team of criminal lawyers in Melbourne regularly deal with bail applications. They are well equipped to advise their clients, their families and their supporters about what is needed for the process, when the application should be made for the best chance of success and what matters should be put to the court so as to give a person the best possible chance of getting bail.
For a criminal lawyer in Melbourne, contact Stary Norton Halphen.
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Doyle's Guide First Tier Criminal Law firm (2020, 2021 and 2022).
