This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Bail Applications
Some people who are charged with a criminal offence are granted bail by police. Those who are refused bail by the police can apply for bail in the Magistrates Court. In some cases, when a person has been refused bail by a magistrate, they may decide to apply for bail in the Supreme Court. This article outlines what is involved in those different types of bail applications.
Magistrates Court bail applications
When you apply for bail in the Magistrates Court, your solicitor will mention your matter and state that you are applying for bail. The prosecutor will provide the court with the police facts outlining the circumstances of the alleged offence and 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 before the magistrate reads them.
If there are no objections, the magistrate will read the documents. The magistrate will then read any documents that your solicitor tenders. The magistrate will ask the prosecution what its attitude to bail is. Bail will not always be opposed. If the prosecution consents to bail, this does not guarantee that the magistrate will grant bail but it is an important factor in favour of granting bail.
If the prosecution opposes bail, it is common either for the informant (police officer) to be called to give evidence or for a form outlining the informant’s concerns about granting bail to be handed up. It is possible to object to some if not all of 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, your residential history, the criteria set out in Section 22 of the Bail Act 1992. Where appropriate they should attack any weaknesses in the Crown case.
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.
After considering all of the material before the court, the magistrate will make a bail determination.
Supreme Court Bail Applications
These bail hearings are normally far more formal. It is rare these days for an accused person to appear in person in the Supreme Court. They normally remain at the jail and appear in court via video link. A solicitor and/or a barrister normally appears for the accused and the police are represented by someone from the office of the Director of Public Prosecutions. A judge will decide whether bail should be granted.
Your lawyer will mention the matter and indicate that bail is being applied for.
The judge will ask for the prosecution’s attitude to bail. Bail will not always be opposed. If the prosecution consents to bail, this does not guarantee that the judge will grant bail but it is an important factor in favour of granting bail.
The Crown will tender a bundle of documents. This bundle will normally include the key statements in the Crown brief. The Crown will normally want to show that its case is a strong one 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. These submissions will address the criteria set out in Section 22 of the Act.
The judge may deliver a determination on the day or adjourn the matter to consider the application.
Review Of Bail Applications
Applications to the Magistrates Court to review a bail decision may be made only in particular circumstances. Sections 42 and 42A of the Act state that the Magistrates Court may, on application, review any decision of the court in relation to bail for an accused person, only if:
- the court has power to make a bail order; and
- the court is satisfied that the applicant has shown
- a change in circumstances relevant to the granting of bail since the court’s decision; or
- the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision; and
- for an application made by the accused person, the person has made 2 applications for bail in the Magistrates Court in the proceeding to which the bail relates.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.