Bail.

When can I get bail?

You effectively have one opportunity for bail unless your circumstances change - under section 22A of the Bail Act.

In practice, to be granted bail you typically need to satisfy the police or Magistrate:

That you have a permanent residence
That you will appear before the Court
That you have a surety with security
That you have security (money to put up)
That you will not abscond
That you will not commit further offences
That you have a defence

If you have been bail refused. “New” or “fresh” evidence needs to be adduced for a subsequent bail application or you need to lodge an application for Supreme Court bail. Any person charged with an offence not punishable by imprisonment, or an offence under the Summary Offences Act, generally has the right to release on bail. There is a presumption of bail for all offences except for offences where there is no presumption of bail or where there is a presumption against bail. There is a presumption against bail for the matters such as serious firearms or weapons matters, cultivation, manufacture, importation and supply of the commercial quantity of prohibited drugs.

If a person is charged with two unrelated serious property offences i.e. robbery, break and enter, and car jacking - and has been convicted of a serious property offence within the past 2 years, there is a presumption against bail .

There is now a presumption against bail for the offence of riot, or an offence carrying a maximum penalty of more than 2 years which is committed while the accused is participating a a large scale public disorder or 'in connection with the exercise of police powers to prevent or control such a disorder or the threat of such a disorder'.

Where there is a presumption against bail the court must concentrate more on the strength of the Crown case.

22A Power to refuse to hear bail application
(1) A court is to refuse to entertain an application for bail by a person accused of an offence if an application by the person in relation to that bail has already been made and dealt with by the court, unless:
(a) the person was not legally represented when the previous application was dealt with, and the person now has legal representation, or
(b) the court is satisfied that new facts or circumstances have arisen since the previous application that justify the making of another application.
(2) A court may refuse to entertain an application in relation to bail if it is satisfied that the application is frivolous or vexatious.
(3) The Supreme Court may refuse to entertain an application in relation to bail if the bail application comprises a bail condition review that could be dealt with under section 48A by a magistrate or authorised justice or the District Court.
(4) Except as provided by subsection (3), this section does not affect the power of a court to review a decision in relation to bail under Division 2 of Part 6 or the right of a person to request such a review.
(5) If a court has previously dealt with an application for bail for a person accused of an offence, a further application to the court for bail in relation to that offence may not be made by a lawyer on behalf of that person, unless the lawyer is satisfied that:
(a) the person was not legally represented when the previous application was dealt with, or
(b) new facts or circumstances have arisen since the previous application that justify the making of another application.

For the following offences, there is no presumption for or against bail:

failing to appear

robbery with corporal violence, striking wounding, being armed or in company

drug offences where the quantity is twice the indictable quantity

a domestic violence offence where the accused has committed a 'personal violence offence' (includes assault and sexual assault) within the last 10 years

at the time of the alleged offence, was already on bail, on parole, serving a sentence, or subject to a good behaviour bond for any other offence

had a previous conviction at any time for failing to appear

had a conviction at any time for an indictable offence

'Exceptional circumstances' must exist before bail is granted to someone charged with murder. Similarly if someone is charged with a 'serious personal violence' offence, and has a previous conviction for such an offence, 'exceptional circumstances' must exist before bail can be granted. 'Serious personal violence' is defined as including murder, attempted murder, armed robbery and most forms of sexual assault.

The following factors are relevant:

the probability of the defendant appearing on bail (including background, record, previous failures to appear, and the seriousness of the offence)

the interests of the defendant (including the need to prepare his case)

the protection of the alleged victim and the victim's family;

the protection of the community (including the risk of commission of other offences and interfering with witnesses.

Supreme Court Bail
If you have been refused bail in the local Court or the District court you may attempt to apply for bail in the Supreme Court. If the offences are very serious often a Supreme Court Justice will be more familiar with the nature of the charges and the evidence than a Magistrate in the Local Court. Therefore we often obtain bail in the Supreme Court we though initially refused in the Local Court.

Appeals bail occurs pending an appeal to the District Court or CCA.If imprisoned in the Local Court an Appeal to the District Court is de novo (meaning 'afresh or 'anew''). Bail is often granted pending the appeal in the District Court.

Appeal bail to the CCA is only for cases where there are special or exceptional circumstances. In practice this means it is necessary to show that the appeal is most likely to succeed. Where the appeal is against a sentence imposed in the District Court, it needs to be shown at least that if bail is not granted the whole sentence will be served before the matter is heard in the CCA, or that there is an overwhelming likelihood that the appeal will succeed in the CCA.

A person can apply for bail in the following jurisdictions:

by a police officer of or above the rank of sergeant until bail is determined by the court

by the Local Court, unless the appellant has appeared in the District Court after committal for trial or sentence or appeal

by the District Court unless the person has appeared in the CCA or SC after committal for trial or sentence or appeal.