Your best bail application guide in 2024

A bail application is an application that is made by an accused person held in custody to be released pending the outcome of their criminal matter. It is generally only available before sentencing occurs, but is also available in certain circumstances where an accused makes an appeal against conviction or sentence.

After the police interview, who decides if I get bail?

Following a police interview, an accused may either be released or held in custody. The police may not immediately decide to issue charges, and occasionally can make that decision months (or years) later.  Should they issue charges, they may either grant bail or make a remand application. It is very common for police to grant bail for accused persons they deem unlikely to be imprisoned if they were to be found guilty. Where the police wish to hold an accused in custody, they must make a remand application at court within a reasonable time.

Can I be represented by a lawyer?

An accused always has the right to be represented by a lawyer at a bail application. Should bail be refused by a bail justice at an out of sessions hearing, an application can still be made at the Magistrates’ Court. It is important to be properly represented at hearings of this type, as a bail application can only be made at the Magistrates’ court once unless new facts and circumstances apply.

How is a bail application decided?

In Australia, legal issues are decided by courts using a common law adversarial system. This means that a prosecutor will be able to make a submission opposing bail, and the lawyer representing the accused can make a submission in support of bail. A Judge or Magistrate has to balance these competing submissions when assessing the merits of a bail application, taking into account arguments presented by both parties, precedent of previous legal cases, relevant legislation and the issues determined by the facts and circumstances presented to the court. The relevant legislation in Victoria is covered by the Bail Act 1977.

Under most circumstances, an accused has a prima facie right to bail, and the prosecution is obligated to prove that the accused is an unacceptable risk of failing to turn up to court, or committing further offences while on bail,  or interfering with witnesses. However, where one is charged with certain types of offences, or has been alleged to have committed offences on bail, one may fall into a show compelling reason position. In a show compelling reason position, the onus of proof is reversed, and the defence has to demonstrate a compelling reason as to why detention of the accused is not justified.

Where an accused has been charged with Murder or other very serious offences, bail can only be granted where the defence can demonstrate that exceptional circumstances exist. This is a very high test, and requires extensive preparation to be successful. Sometimes, this means that bail applications can take weeks to prepare for. Other times, in simpler circumstances it can be applied for immediately.

What can I do to get my family member bail?

The best thing that you can do is get in touch with a competent lawyer. A lawyer will get in touch with the police and get a copy of the charges and the remand summary. From that, the lawyer will do a basic analysis to determine the strength of the remand application made by police, and to determine if there is a realistic chance of obtaining bail. Some of the factors that will be important to consider are:

• Is there a strong prosecution case, or is it weak?
• Is there a relevant criminal history?
• Is there a history which shows a lack of compliance with court orders, or a breach of bail?
• Are there drug or mental health issues, and if so is there a plan in place to manage those issues?
• Are their associates of the accused willing to put up a surety?