Bail Applications 

reprinted with the kind permission of Allan Weiss

Bail applications refer to a court hearing where a person charged with a crime appeals to be released from police custody to appear in court at a later date. What this means is that the charged person does not have to remain in prison until their case is heard in court, leaving them free to remain in society.

If bail applications are successfully argued by their criminal lawyers and are approved, there are usually a number of conditions placed upon the person to restrict their movements and activities until they are tried. These conditions and restrictions are known as 'an undertaking as to bail', and if these are not obeyed then a warrant can be issued for the persons arrest. An arrest warrant will also be issued if they do not appear for their court date.

When a court considers the bail applicant, it will take into account several elements of the case and the applicant. These will generally be the nature of the crime committed, the defendant's links to the community and family ties, the defendant's bail record and the strength in the prosecution's case.

If a court rejects a criminal lawyers bail application, it will usually be based on the defendant failing to convince the court that they will respect conditions of bail and not abscond, commit more offences or contact witnesses.

The court may also refuse bail for various reasons ranging from for the defendant's own protection to defendant is already serving a custodial sentence to defendant has already absconded in other proceedings.

One of the most important elements of bail applications from a criminal lawyers defense perspective is the bail monetary amount. In most bail applications, a financial payment will be required as a guarantee of the defendant returning to court. Ideally, this will be as low an amount as possible with many people using their homes and such as collateral.

In most Australian states and territories, bail applications are made by criminal lawyers to the Trial Division and heard by a judge of the Trial Division (Criminal) or a Judge in the Practice Court.

There are five sections of the Bail Act 1977 that defendants or criminal lawyers should be familiar with:

  • Section 4 - The reasons that any person accused of an offence may be granted bail, and the reasons the court may refuse bail.

  • Section 8 - The matters the court may consider when hearing an application for bail.

  • Section 13 - Only the Supreme Court of Victoria can grant bail to a person charged with treason. A person charged with murder may be granted bail by the Supreme Court or by the magistrate who commits the person for trial. In charges of murder or treason, bail can only be granted if the applicant can prove there are exceptional circumstances.

  • Section 18 (4) - Where the first application for bail is refused, another application may only be made to the Supreme Court when the applicant had no legal representation for the first application, or when there are new facts or circumstances that were not available during the first application.

  • Section 18A - The Director of Public Prosecutions may appeal against the granting of bail to an applicant

There have been amendments made to the Bail Act 1977, such as the Criminal Justice Act 2003 which restricted the right for bail in adults positive for Class A drug and refuse treatment.


Written by Allan Weiss 

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