Bail

Criminal Law

Bail is where a defendant is released from custody pending the outcome of their court proceedings. Only a bail authority such as a police officer, an authorised justice or the court can grant you bail.

Being charged with an offence

After you have been charged, the police may keep you at the police station until you can be brought before the court later that day or the next day. However, the police may decide to grant you police bail. This means that the police will release you until you have to attend court to face the charges against you.

Do I get bail – yes or no

The court must consider whether you need to ‘show cause’. This means that you must explain to the court why locking you up is not justified. The court has to consider the ‘bail concerns’.

The Court will normally have a copy of the Police Facts Sheet and your criminal history. This facts sheet will have the details of the police charges against you.

Even though the Court will presume that you are innocent, the Court will look at the seriousness of the allegations against you and the prosecution’s case and your criminal history. If you have a long criminal history and you are facing serious allegations, you will be unlikely to get bail

The Court will also be concerned with what you will do if you are given bail. Such concerns are mainly about will you appear before the Court in the future, commit a serious offence, will you endanger any person or the community, and will you interfere with any witness or evidence.

The Court will approach such concerns by looking at your background, including your criminal history and criminal associations, and any history of violence.

In addition, the Court will look at the impact of not granting you bail, such as obtaining legal advice, your age, mental health issues and your Aboriginal or Torres Strait Islander background.

There are many other issues that the Court will look at but it comes down to your behaviour and the risk you pose to society.

The Court says no to bail

If the Court decides that you are an unacceptable risk, they must refuse you bail. It will not matter that you have your wedding the next day or that it is your mum’s birthday, the Court will have no choice but to refuse bail. If the court refuses you bail, you can apply to the Supreme Court to give you bail. The rules changed in 2019 and this means you need a lot more information on the application form before you can even get a court date.

The Court says yes to bail

The Court must decide what conditions to impose on you. The conditions imposed on your bail must be the minimum necessary to address the concerns of the court.

Conduct requirements

Conduct requirements are about what you must do or not do. These can be reporting to the police every day, live at a specific address, surrender your passport, not associate with specific people, and not go within a certain distance of a specific place.

Curfew condition can also be imposed.

Other types of bail conditions can be imposed if conduct requirements are not enough. Such conditions can be:

Security requirements

This is a bail condition requiring you or another person to give security.

Character acknowledgments

This requires a person of good character to sign a form saying they believe you are a responsible person and that you will obey your bail conditions.

Enforcement conditions

These are bail conditions to make sure you comply with one of your other bail conditions. Such an example is to open the door when the police arrive.