What Happens in a Bail Application


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 prosecutor what the prosecution’s 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; however, it is an important factor in favour of granting bail.

If the Prosecution opposes bail, it is normal 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 (ACT). 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; however, 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 Bail 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 require a number of factors. This article looks at those factors, as outlined in sections 42 and 42A of the Bail Act 1992.

Section 42 and 42A Bail Act 1992 (ACT)

Sections 42 and 42A of the Bail Act 1992 (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—

  1. the court has power to make a bail order; and
  2. the court is satisfied that the applicant has shown—
    1. a change in circumstances relevant to the granting of bail since the court’s decision; or
    2. 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
  3. 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.

Paragraph (c) above was only recently added to the statute book. It was brought in with the intention of keeping more bail applications before magistrates rather than judges in the Supreme Court. Previously, a person could go straight to the Supreme Court after only one unsuccessful bail application before a magistrate.

 

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