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What are bail applications?

A bail application is a request to a court that an accused or convicted person be released from custody pending the determination of criminal proceedings against them. If you are charged with an offence you may either be granted bail by the police or the Local Court.

What is the bail application process?

If you are charged with an offence and are not granted bail by the police you will need to make a bail application in the Local Court.

If the Local Court is determining whether you should be released on bail, they will consider whether you have committed a show cause offence and whether granting bail would present an “unacceptable risk”.

If you have committed a certain type of serious offence that is classified as a “show cause offence” the court will refuse bail unless you can show the court why your detention is unjustified. If the court is satisfied that your detention would not be justified, then it determines your bail application on the basis of the unacceptable risk test.

The unacceptable risk test applies to the court’s determination of a bail application in relation to all offences. The unacceptable risk test requires the court to assess whether granting bail would present an unacceptable risk. To determine this the court will need to assess several bail concerns, these are in relation to whether, if released from custody, you will:

  • Fail to attend court, or
  • Commit another offence, or
  • Endanger the safety of victims, individuals or the community, or
  • Interfere with witnesses or evidence.

These are known as bail concerns and will be assessed by the court through reference to several other factors. The court may address the presence of any of these concerns through the use of bail conditions. If the court decides that granting bail would still present an unacceptable risk even if conditions are imposed, bail will be refused.

Bail Conditions

If the court grants you bail, it may do so whilst also imposing bail conditions that must be complied with. A bail condition can only be imposed if the court is satisfied that:

  • The bail condition is reasonably necessary to address a bail concern, and
  • The bail condition is reasonable and proportionate to the offence for which bail is granted, and
  • The bail condition is appropriate to the bail concern in relation to which it is imposed, and
  • The bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and
  • It is reasonably practicable for the accused person to comply with the bail condition, and
  • There are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

What bail conditions will be imposed will depend on the circumstances of your offence and arrest. For example, bail conditions can impose:

  • Conduct requirements: these conditions control what a person can and cannot do. For example, a conduct requirement may compel you to comply with a curfew or surrender your passport.
  • Security requirements: these conditions may require you or another person to agree to pay money to the court if you fail to attend court.
  • Enforcement conditions: these conditions function in order to monitor or enforce compliance with another bail condition.
  • Character acknowledgements: these conditions may require people who know you to provide evidence that they regard you as a responsible person who will comply with bail requirements.

Why BSM Lawyers

If you are charged with a criminal offence, it is important that you seek expert legal advice and assistance to obtain bail.

Brander Smith McKnight’s team of expert criminal defence lawyers can help you with bail applications because we have extensive experience with both bail law and bail applications.

FAQs

chevronWhat happens if I breach bail conditions?

If you breach one of your bail conditions, you could be potentially arrested and brought before the court. This may result in the varying of your bail decision and could result in your bail entitlements being revoked or result in new bail conditions being imposed.

chevronHow long will I have bail?

Generally, if you have been released on bail you will have bail until your matter concludes.

chevronWhat is a surety?

A surety is a sum of money paid by someone as a condition of a release on bail. Providing a surety is a way of guaranteeing you will attend court if you are released on bail. If you do not attend court, the surety money will be forfeited to the court.

chevronCan I vary bail conditions?

Yes, you can apply to the court for a variation of bail conditions. You may wish to do this if you believe that the bail conditions that have been imposed on you are unfair or inappropriate.

Brander Smith McKnight’s criminal defence lawyers can assist you in applying to vary these conditions.

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