Charged and in Custody: Applying for Bail

When a person is taken into custody and charged with an offence, most of the time it is a new and unexpected experience.  There are usually lots of questions from the person arrested as well as their family or friends.  The most common questions we get asked about applying for bail are:

What is bail?

Bail is a written promise, otherwise known as a bail undertaking, that you will appear in Court at a particular time and date and abide by any conditions included in the bail undertaking.

Will I get police bail?

You are usually entitled to police bail if you’ve been arrested for a minor offence. There are, however, some situations where the police may refuse to grant you bail and, instead, keep you in police custody until you appear in Court and answer to the charge/s.

You may be refused police bail if:-

  • you have outstanding court matters or fines;
  • your case is very serious;
  • the police believe that you will not attend your scheduled Court hearing;
  • if it is alleged that you committed a serious offence while you were on bail for another serious offence;
  • there is a risk of you interfering with witnesses;
  • there is a risk of you absconding; or
  • there is a risk of you destroying evidence.

What happens if I am refused police bail?

If the police refuse to grant you bail then a police officer must bring you before a Court as soon as practicable. At the Court appearance either you, or your lawyer, can make a bail application. The Court will consider if there is a risk of you:

  • committing further offences;
  • endangering the safety, wellbeing or property of another person;
  • obstructing the course of justice;
  • interfering with witnesses; or
  • failing to appear in court.

The Court will also consider:-

  • the type of offence you have been charged with;
  • the strength of the Prosecution’s case against you;
  • your bail history (if any);
  • your character and any previous convictions;
  • your personal history including whether you have a place to reside, a job or any children to care for; and
  • whether you have someone to provide a surety.

What happens if the Court refuses my application for bail?

If a Court denies your application for bail then you cannot make a further application before a Magistrate unless:-

  • there are new facts;
  • there has been a change in circumstances; or
  • the application for bail that was made the first time was not adequately presented.

You may, however, apply for reconsideration of the decision of the Magistrate before a Judge, usually in the Supreme Court.

If someone you know requires advice on, or representation for, an application for bail, we have experienced criminal lawyers available to assist you. Please contact us on (08) 9228 2881.

Disclaimer – The articles provided by Equitas Lawyers are for general information only. While every care has been taken in preparing these articles, they are intended to be a guide only, and no warranty is given as to the accuracy, currency or completeness of the information contained in them. The articles are not intended to be, nor should it be, relied upon as a substitute for legal or other professional advice. Formal legal advice should be sought in particular matters.

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