There are a number of reasons why a person who is charged with an offence is remanded into custody, including:
- the seriousness of the offence with which they have been charged;
- The Bail Act requiring a judicial officer (rather than the police or a bail justice) to make the decision whether or not to bail them; or
- The police being of the view that the person is an unacceptable risk of failing to attend court for their case, committing an offence, interfering with a witness or endangering the welfare of any person.
At Stary Norton Halphen bail applications are a constant part of our day-to-day practice. We are therefore well equipped to advise our clients, their families and their supporters about what is needed; when to list; and what matters ought to be put to the court, to give our clients the best opportunity of successfully applying for bail whether that application is heard in the Children’s Court, the Magistrates’ Court, the County Court or the Supreme Court.
The Timing of a Bail Application
Knowing when to proceed with a bail application is critical. In some situations, it is best to proceed immediately. In other situations, it is best to wait. An experienced criminal defence lawyer understands that the timing of a bail application may well be the most important decision they make in their client’s endeavour to make bail.
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, refraining 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. Worse still 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.
Preparing a Bail Application
Whether a bail application is run straight away or not, it needs to be well prepared. A bail application also needs to be targeted and address the concerns a court might have about releasing a person on bail. Are they a flight risk? Will they commit an offence while on bail? Will they interfere with a witness? Will they endanger a member of the community? An experienced criminal lawyer will anticipate what concerns a court will have and ensure that those concerns are addressed. Depending on the circumstances of the case this will require a defence lawyer to ensure that when they run the bail application, they have evidence of things like:
- a suitable and appropriate address for the accused to reside at if released on bail;
- treatment and support being available should the accused person have addiction or mental health issues;
- employment being available to the accused person if they are granted bail; and/or
- a surety being available
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 an employer there are many things that they will have needed to organise to give their client the best opportunity to successfully apply for bail.
Satisfying the Court that Bail is Appropriate
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 does so 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 so 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 on the strategy they employ when running the application itself.
Expert Criminal Lawyers
If a family member or a friend has been arrested by the police and remanded into custody, contact us immediately on (03) 8622 8200 or, if it is the weekend or afterhours, on 0407 410 821.
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Advice from a competent and experienced criminal lawyer before you are interviewed can and often does have a meaningful impact on the outcome of your case and in some instances, is the difference between whether your matter proceeds to court or not.