Bail is when a person, under arrest, is temporarily released from police custody for a period of time. It is usually granted until the next hearing date and can be granted at each stage of the criminal process. If you are arrested by the police, you should understand your bail rights and conditions.
When can you apply for bail?
You can, and should, apply:
- before your first court appearance at the Magistrates Court;
- between hearing days;
- before sentencing (if you are convicted);
- before appeals; and
- during appeal hearings.
There are two types of bail: Police Bail and Court Bail.
You should apply for Police Bail as soon as you are arrested. You can apply to the Police Sergeant or officer in charge of the police station. There is a presumption in favour of granting bail. However, it will be refused if you are considered a threat to society or considered unlikely to answer your summons (mandatory appearance in court).
The main reasons for refusing bail are:
- you are a flight risk and custody is necessary to ensure you attend your court appearance;
- you pose a danger to the victim, a witness or the general public, and police custody is necessary to protect these people;
- the crime that you committed is a serious offence (e.g. family violence, drug trafficking, stalking);
- custody is necessary for your own safety; and
- you have breached bail before and there is a real risk that you will commit a breach this time around if it is granted to you.
If the police refuse bail, they must bring you before a Magistrate at the Magistrates Court within a reasonable amount of time. This typically means within 48 hours from the time of your arrest.
If Police Bail is refused, you can apply for bail before the Magistrates Court. This is called making a “Bail Application”.
The Magistrate will first hear from the police (or prosecution). They will detail your charge and why your bail is opposed. After hearing from the police, the Magistrate will hear your reasons for why bail should be granted.
In your Bail Application, you should tell the Magistrate:
1. your personal background, including:
- your age, marital status, children or dependants;
- your family (having family support helps with an application);
- your occupation; and
- your criminal history;
2. why bail should be granted to you (including your responses to police objections); and
3. any bail conditions you prefer or can offer to the court.
Common conditions include:
- promising the court you will not breach bail (this condition is called an “own undertaking”);
having another person (called a “surety”) promise to pay court a sum of money if you breach your conditions (this condition is called a “guarantee”);
- giving court a sum of money which will be forfeited to court if you breach bail (this condition is called a “deposit”);
handing over your passport to court;
- reporting to a specific police station on a regular basis; and
- promising court not to contact a particular person (e.g. witness, victim) or to not to go within a certain distance of a person.
All bail is granted on the condition you appear at your next court hearing.
What happens if you breach your conditions?
Do not breach your bail conditions. If you breach your terms, you have committed a serious offence under criminal law and you could risk:
- being arrested and taken back in custody;
- being fined;
- being charged with the separate offence of breaching bail and sentenced for this offence (for example, with additional imprisonment);
- having future bail applications refused; and
- forfeiting your guarantee or deposit to court.
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