In Australia, criminal lawyers will tell you that even if you’ve been charged with a criminal offence, you are presumed innocent until proven guilty. This means that you can usually be released on bail until the trial date is due. Of course, this will depend on the severity of the crime you’ve been charged with.
There are two types of bail –
- Police bail. When the police charge a person with an offence they have a fairly good idea whether or not it is safe for them to be out on bail. If it is deemed that they won’t intimidate witnesses, destroy evidence or abscond so you can’t be found again, the police will grant them ‘police bail’. There are likely to be certain restrictions on what the person can do and where they can go and a form must be signed agreeing to this in order to gain freedom until the trial date.
- Court bail. If the police don’t set bail, application can be made to the court for bail. It is the law that a person must be taken before a court as soon as possible if police bail is refused. They will have to remain in custody until they can get to court and with their lawyer, apply for court bail. When this happens the court may give them bail, or may refuse it. To make this decision, the court will have to consider a number of things such as whether the applicant is likely to abscond and not attend their court hearing, commit another offence, endanger anyone’s safety or obstruct the course of justice in any way.
They will also take into account the personal history of the applicant in making the bail decision. This will be things such as their character and previous convictions, financial position and location of residence, previous bail history if any, the nature of the current offence and the likelihood of a conviction.
Bail conditions are set to ensure the safety of other persons, so they usually apply certain restrictions e.g. the person may not be allowed to go to the residence of a victim. If the conditions of the bail are broken there will be a penalty, which will make things worse.
What if the court refuses bail? There is not much you can do unless there are new circumstances or facts to present. The only other thing to do is apply to the Supreme Court for a reconsideration of the matter. However, a good lawyer, will do their best to present the case for bail and may be successful, because they know the law better and are able to speak more eloquently, since they’ve been trained to do so.