Applying for bail

A person who is held in custody and charged with a crime can apply for bail. A lawyer can advise you when the best time to apply for bail is. If the police oppose bail your lawyer can negotiate with police to reach an agreement on the conditions of bail.>

When can bail applications be made?

Applications for bail may be made at any stage in the criminal process, including:

at the police station after being arrested and upon being charged;

when an accused is first brought before a bail justice or the Magistrates’ Court;

while an accused is waiting the charges to be heard in court;

at the conclusion of a committal hearing in the Magistrates’ Court upon being committed to stand trial in the County Court or Supreme Court;

after committal for trial in the County or Supreme Court while an indictable matter is pending;

pending an appeal after conviction and sentencing;

following a successful appeal against conviction and before any retrial being heard.

The timing of a bail application and its preparation are critical.

If a bail decision-maker is satisfied that an accused person is seriously affected by alcohol or drugs, they may adjourn a bail hearing and remand the person for up to four hours. After four hours, if a bail decision-maker is satisfied that the person is still seriously affected by alcohol or drugs, they may adjourn the bail hearing for one more four-hour period(s 8(3)–(6)).

An accused who has been refused bail by a police officer, bail justice or sheriff can make a further application to a court.

An accused who has been refused bail by a judge or magistrate and is in custody pending the hearing of the charge, may also make further bail applications to the court; however, a court must not hear a further application unless:

new facts and circumstances have arisen since the refusal or revocation of bail; or

the applicant was unrepresented when bail was refused or revoked.

The further application for bail must be heard by the same judge or magistrate who determined the previous application, if reasonably practicable (s 18(4)). This threshold does not apply to fresh applications heard by the Supreme Court under its inherent jurisdiction.

An accused who has been refused bail and who makes a fresh bail application to the Supreme Court is required to give the prosecution notice, in the prescribed form, at least three days before the hearing of the further bail application (s 18AK).

The prosecution can agree to dispense with the notice requirement and the court can dispense with the notice requirement if the matter is urgent and the court can adequately determine the matter despite the lack of notice.

Things to consider before a bail hearing

It is advisable to consider the following matters before the hearing of the application for bail:

1 What are the charges? When were they laid? How stale are they?

2 Is there a presumption in favour of bail or is there an onus that must be discharged by the applicant?

3 What is the evidence said to support the charge? Is it a strong case, a weak case, or is it too early to tell because the police have not yet completed their enquiries? Does a case rely on the statements of a co-accused? Is the co-accused indemnified in relation to the charges?

4 How far advanced are the police in readiness for the hearing of the charges? Are there listening device recordings or telephone intercepts? How many hours of recordings are there? Are the transcripts prepared? If not, how long will it take to prepare them?

5 Has the applicant participated in a record of interview or made any admissions? Has the applicant consented to an identification parade and already participated? What was the result? Have any forensic tests been sought or conducted (DNA, drug analysis, fingerprints)? What do the results show or fail to establish? Is there a lengthy delay anticipated in relation to the provision of forensic analysis? Are such results pivotal to the strength of the case against the accused?

6 Does the applicant know yet how they will plead? Is this issue premature because the strength of the case is as yet unknown? Will the position be reviewed depending on what emerges at the bail hearing?

7 What is the police’s and prosecution’s attitude to bail? If there is a “victim”, what is their attitude?

8 Has the applicant got prior convictions? If so, what are they? How long ago?

9 Has the applicant ever been on bail before? If so, did they honour the conditions and answer bail? If not, why not? Why will it be different this time?

10 Are there co-offenders? If so, were any of them granted bail? With what conditions? If not, why not? Are there similarities or differences between this case and theirs? What are their ages and personal circumstances? Do they have prior criminal histories?

11 Does the prosecution seek the cooperation of the applicant to assist in its proofs against other offenders?

12 When are the charges likely to be heard? If there is to be a committal, how long will it take (how many witnesses, how many pages in the hand-up brief, how many days will the committal occupy)? When is that hearing likely to be (earliest date, latest date)? Assuming the applicant is to be committed to stand trial, how long will the trial take? What is the likely trial date (earliest date, latest date)? Are funding issues likely to delay either hearing? Calculate the dates in terms of time from now until each such event (e.g. three months until material served; two months to a committal mention; further six months to committal; further 11 months at the earliest to trial; totals at least 22 months – almost two years in custody if bail is refused). This is relevant to the issue of delay.

13 Is there a risk that an accused would have served any likely sentence (or would be looking at a non-custodial sentence) prior to any listed hearing date if bail is not granted?

14 Are there any matters vital to the preparation of the defence that can only or best be achieved on bail (e.g. inspecting documents, gathering evidence)?

15 How is the applicant coping in custody? Have they been they assaulted? Where are they? Is their health adversely affected? What are the conditions of confinement? Are they able to access appropriate drug rehabilitation or medical (etc.) treatment on remand?

16 Is the applicant particularly vulnerable due to age? (e.g. the applicant is very young (see SG v TA [2015] VSC 264) or elderly (see R v Penny [2015] VSC 155)).

17 Is the applicant particularly vulnerable for some other reason? (e.g. the applicant is deaf (see Fields [2015] VSC 309) or has some other isolating factor or illness).

18 Factors personal to the accused (i.e. age, background, marital status, dependants, where they will live and who they will live with if granted bail, employment, ties to the jurisdiction, responsibility for the care of others, health, etc.) to demonstrate the likelihood of answering bail, complying with bail conditions and not offending while on bail.

19 What factors are relevant to any conditions of bail? Who are the proposed sureties? (Obtain instructions about their appropriateness and whether they have prior convictions.) How much is the surety? What are the surety’s passport details? Does the surety have connections to any prosecution witnesses?

20 How will the applicant prove each of the above factors? (e.g. if relying on ill health, get a medical report and exhibit to an affidavit).

21 Is this the first application for bail in this matter? If not, where and when was the earlier application made? Was the applicant represented last time? If so, why was bail refused? What has changed since then?

22 Who will hear the application? Has a co-accused already applied for bail before a particular magistrate or judge? Does parity apply?

23 Have any documents been filed with the court? If so, what are they? Are any further documents required?

24 What is the fallback plan if this bail application fails?

25 What programs are available through the court to assist the applicant with housing, drug rehabilitation, etc.?

If bail is contested

If bail is contested (i.e. if bail is being opposed) by the police, it is necessary to explore the reasons for this. Sometimes opposition can be overcome with negotiated conditions, which may address police concerns about risks; for example, offering that the accused report daily, obtain drug rehabilitation and/or treatment, adhere to a curfew or provide a substantial surety (seeSureties”). These matters should be discussed with the prosecution before the bail hearing.