Any person who has been incarcerated for any period of time understands the incredible impact that this deprivation of liberty has on the individual.

Every person admitted into custody, whether it is their first time or not, finds their initial introduction into custody frightening, overwhelming and distressing. Their friends and family members are also affected. Bail is a contentious issue in all jurisdictions, particularly when the offences alleged are serious and/or involve violence.

However, the Bail Application is often the first occasion upon which the Crown case can be explored and questioned. It is an opportunity that properly engaged and briefed legal advisors can take full advantage of, which increases the prospects of success in the application and also in your case as a whole.

Bail may be granted either with the consent of the Prosecution or over their objection. It may be granted in the Magistrates’ Court (except for very serious offences, such as murder), the County Court following Committal for Trial or Plea, or in the Supreme Court for serious offences or in circumstances where the Magistrate refused bail. Depending on the offence for which you are charged, you may have a prima facie entitlement to bail, you may have to show cause, or you may have to show exceptional circumstances.

In our extensive experience, proper preparation of a bail application is key. Depending on the strength of the Crown case, the seriousness and number of offences, whether the accused has any prior convictions (particularly for offences committed on Bail or for failure to appear in compliance with a bail undertaking), the attitude of the Prosecution, the availability of surety, and other factors, obtaining bail may be a straight forward exercise or it may be a difficult endeavour.

Bail might also be something that you choose not to apply for. If the evidence is overwhelming, the Accused is going to plead guilty and will receive a prison term as a result, the most prudent course is to remain in custody so that you can start serving the duration of your sentence on remand. Any time spent on remand is deducted from the sentence which you will receive and many individuals who understand that they will inevitably receive a sentence of imprisonment for their offending would prefer to commence serving their sentence on remand, than be granted bail and be readmitted into custody, which ultimately extends the duration of the proceedings.

Bail may also be something that is entered into in order that the Accused may enter into residential rehabilitation, or onto the Court Integrated Services Program (CISP). Magistrates’ and Judges are quite aware of the unfortunate availability of illicit drugs within prisons. The entire community is aware of addiction issues and particularly with the prevalence of ice (methylamphetamine) and offences associated with it. Understanding that addiction is a medical issue, Courts are often willing to entertain a release on bail in order that the Accused can attend a drug detox and rehabilitation program, which will ultimately serve them in life and in their court proceedings.

However, it is very important that if you or someone you know is arrested and given the opportunity to go before a bail justice and make an application for bail, that they consider whether they should wait to obtain properly briefed legal advisors before taking that step. If you appear before a bail justice legally represented (even by a duty lawyer who met you 5 minutes earlier) and you are denied bail, you will have to establish new facts and circumstances in order to go before a Magistrate again. In the alternative, your application has to be heard in the Supreme Court. This denies you of a valuable second chance at bail that would otherwise be available to you.

Bail applications can be quite quickly prepared and run in a sophisticated manner, so long as all of the relevant material is available and the proper conditions settled upon, which includes a surety.

Any questions regarding bail should be directed toward our office. We are happy to support and guide all clients (including their families and friends) through the process.

We have prepared a detailed Bail Application Information Guide to help you with this process. Get in touch with our bail application lawyers for more information.