In New South Wales and Queensland, applying for bail is one of the most important parts of criminal offence legal proceedings, which is unfortunately often overlooked by both practitioners and clients.
Typically, the bail application process begins in the Magistrates Court in Queensland or the Local Court in New South Wales, and in most circumstances, you only have one opportunity to apply, so it’s vital to seek legal guidance.
Applications can be considered by the Supreme, District and Magistrates Courts. Generally, you apply for bail in the court that is dealing with your charges.
What exactly is a bail application?
Bail allows a person who is charged with a crime or criminal offence (a defendant) to be released from prison while their case is being determined in the court system and acts as a written promise (or ‘undertaking’) to return to court.
In New South Wales, this is mandated under the Bail Act 2013 No 26 and under the Bail Act 1980 in in Queensland, providing a legislative framework for a decision as to whether a person who is accused of an offence, or is otherwise required to appear before a court, should be detained or released with or without conditions.
Are you automatically granted a right to bail?
Many people believe bail is granted to anyone accused of a crime, such as drug offences. However, there is no actual common law right to bail.
The main considerations for bail to be granted often include:
- preparing a defence
- the seriousness of the offence
- the seriousness of the punishment
- will the accused answer bail?
- is the accused likely to re-offend?
- the likelihood of the accused to interfere with witnesses
If granted, all bail orders are processed as a matter of urgency and often include conditions, such as lodging a sum of money (a ‘surety’) or reporting regularly to a specific police station. Any money or surety is refunded after the court has dealt with the charges and if you comply with all bail conditions.
What happens for Magistrate Court bail applications?
First, when you apply for bail in the Magistrates Court, your solicitor should state that you are applying for bail. The prosecutor will then provide the court with the police facts outlining the circumstances of the alleged offence along with your criminal record, if any, and any other relevant documents. Your lawyer will have an opportunity to read these documents and make any objections to them.
If there are no objections, the magistrate will read the documents and any other relevant documents your solicitor tenders. The magistrate will then ask the prosecution what its attitude to bail is. If they consent, this does not guarantee that the magistrate will grant bail, but it is an important factor in your favour.
If the prosecution opposes bail, it is common either for the informant (police officer) to be called to give evidence or a form outlining their concerns about granting bail being handed up. It is possible to object to the content of these forms.
Your lawyer will make submissions on why the court should grant bail. These submissions will include your ties to the community and your residential history.
When appropriate, your lawyer will indicate to the court that someone is willing to deposit cash or security to secure your bail. Normally this person will not be required to give evidence. Finally, after considering all of the material before the court, the magistrate will make a bail determination.
What happens for Supreme Court bail applications?
Supreme Court bail hearings are generally more formalised. The accused remains in prison and appears in court via video link with a solicitor and/or a barrister, and the police are represented by someone from the office of the Director of Public Prosecutions.
Your lawyer should indicate that bail is being applied for and the judge will determine if it should be granted by asking for the prosecution’s attitude to bail. If the prosecution consents to bail, this does not guarantee that the judge will grant bail, but it is an important factor in your favour.
The Crown will tender a bundle of documents which include key statements in the Crown brief. The Crown will normally want to show that its case is strong and will tender those documents that do this. It is normal for your lawyer to negotiate with the Crown as to what statements are given to the judge.
If evidence is disputed, the judge may permit the cross-examination of the police officer in charge to ascertain the strength of the Crown case. Normally evidence is called by your lawyer from people who may be depositing cash bail, an employer, a spouse (if hardship is likely), a representative from a rehabilitation facility, or you.
Your lawyer will make submissions as to why bail should be granted, and the judge may deliver a determination on the day or adjourn the matter to consider the application.
Get help with your legal matter
Mark Savic Legal has helped many clients to be granted bail in various courts across NSW and QLD, and they know that knowledge and experience are the best tools to use when your freedom is at stake.
If you or a loved one is seeking to apply for bail in Coffs Harbour, Woolgoolga, Maclean, Grafton, Yamba, Northern NSW, the Gold Coast or Brisbane – contact the Mark Savic Legal team as soon as possible to discuss your options.
Phone: 0418 738 172