How to make a successful bail application

Today we talk about how to make a successful bail application. You must first consider whether there is a presumption in favour of bail, is their a presumption against bail, is there a right to bail, or is there a neutral presumption in relation to bail. The relevant legislation is the bail act. In regards to the presumption in favor of bail, section 9 of the bail act provides with exceptions that an applicant is entitled to bail unless the court is satisfied that it is justified in refusing bail and applies only to offences specified in that section. In regards to a presumption against bail the relevant section in section 8 capital A of the bail act. Now that creates a presumption against bail in relation to the offences to which it applies. It provides that an applicant accused of an offence specified in that section is not to be granted bail unless the applicant satisfies the court that bail should not be refused. Next in regards to a right to bail the relevant section is section 8 of the bail act where which says that where the applicant is entitled to bail with specified exceptions generally makes bail mandatory in relation to the offences it applies to. Next we move to the neutral presumption. In relation to all other offences there is no statutory presumption in favor of or against bail. Now you need to be aware of which one applies to your particular charge. The court looks at a number of factors in considering a bail application. The factors generally what the court looks at is the section 32 factors of the bail act. The first factor is the probability of the person responding to bail; will the person meet their bail conditions if bail was granted. The second factor the court looks at is the interest of the person. Now the third factor the court looks at is the protection of any other person. The fourth factor the court looks at is the protection and welfare of the community. Now i’ll go through each one just very briefly. In regards to the first factor the probability of the person responding to bail, in considering this the court looks at any community ties that you have. Are you do do you have a close relationship with your family? Do you have employment or do you have employment prospects? The court also looks at any previous failures to appear that you may have on your record and any ability that you may have to flee the jurisdiction. The court also looks at the seriousness of the offence, it looks at the strength of the prosecution or crown case, and it looks at your criminal prior criminal record, as well as whether or not a custodial penalty is likely if you are convicted. Just in relation to the seriousness of the offence. Now the seriousness of the offence is to be taken into consideration, but it’s not the sole factor to be considered, and the court also looks at whether this is your first time in custody, is it your first time in jail? A limited criminal history would provide no reason for the court to have concern of you answering your bail, or reoffending. The more criminal history you have the more difficult it becomes. Do you have any previous failures to appear, percent to any bail undertaking that you have previously made. These are all factors which indicate whether or not you will appear in respond to bail. The court also looks at any other evidence indicating whether it’s probable or not that you will appear in court. Second factor that I referred to, the court looks at is the interest of the person having regard to, here the court looks at the period of time that you will spend inside jail if you are refused bail pending your case. Now there’s a case of crown and medich 2010 in the Supreme Court, which considered the lengthy period of time that the applicant in that case would have spent in custody. When there when when he’s honor in that case found that the applicant actually had reasonable prospects of being found not guilty in addition to the considerations of the section 32 factors that I’m speaking of. The other factor the court looks at is is the matter still in the local court and how long has the applicant or you spent inside jail when the bail application is being made, and what stage is that matter up to. The court also looks at the need to be free for any particular purpose, such as to obtain legal advice it is very difficult for our lawyers to communicate with their clients if their clients are very far away in a jail. It makes communication very difficult. In regards to the same second factor that I’m speaking of the interest of the person, the court also looks at any other need to be free for a lawful purpose, for example do you have a drug problem? If you have a drug problem it’s good idea to obtain a letter from a drug residential rehabilitation program to confirm that there’s a bed available for you. That is a lawful purpose and to be free and that may be a reason why bail is granted. Another factor the court looks at is are there any special needs, do you do you have a disability, a mental illness or condition that you require medications for, and are those medications being met consistently inside jail. The court also looks at the period of time between the offences; the current offence and any previous offences that you have. Let’s move now on to the third factor the protection of any other person, this may include the complainant or the alleged victim in the matter, it may include the close relatives of that person and any other person considered to be in need of protection because of the circumstances of the case. In considering this the court looks at the history of violence on your record if any at all, it looks at the period of non-offending as I’ve spoken of earlier. It also looks at are there any breaches of good behavior bonds, were you want bail at the time of this current alleged offence, and have you previously been on bail that you have breached in the past. The fourth factor the court looks at is the protection in the welfare of the community and in regards that the court looks at a number of other factors. These are whether there are any prospects of further criminal activity of any kind if strict bail conditions are imposed restricting your movement, is there a suggestion that if you released on bail that you might cause harm to anyone else, consider the nature and seriousness of the offence, consider the likelihood of interfering with evidence, with witnesses, or jurors. So those are generally the factors the court looks at. It’s always a very good idea to have a surety ready. Now surety is an acceptable person who can be willing to put up a sum of money for the bail application with security or without security. Generally the courts like it to be with security and a condition that that security will be forfeited in the event of a breach of the bail conditions. Now if the surety cannot be in attendance on the day it’s always a good idea to be prepared in advance and have an affidavit ready and executed ready to be handed up to the magistrate or the Supreme Court judge. There will be further conditions imposed the court may impose conditions such as reporting to the local police station, and it may maybe once or twice a week, it may be daily seven days a week. The court also looks at whether or not you have a passport, and if so that will be a good idea to have that ready to be surrendered to the court. The court may also impose further conditions that you are not to approach any certain geographical area and or not to approach or contact any other person involved in the case such as the alleged victims in cold queues etc.

6 thoughts on “How to make a successful bail application

  1. Bail should be assessed using the following criteria – seriousness of the offence, antecedents, propensity for further crime, danger to the community, flight risk, risk to witnesses and community. END OF STORY!

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