Introduction
In Australia, bail is a crucial aspect of the criminal justice system, allowing an accused person to remain free while awaiting trial. However, bail is not automatically granted, and its approval depends on various factors. This article provides a comprehensive analysis of the Australian bail system, helping you understand how to apply for bail, the bail refund process, and key considerations.
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What is Bail?
Bail refers to the temporary release of an accused individual during criminal proceedings, subject to the payment of bail money or compliance with certain conditions based on the nature and severity of the case. The purpose of bail is to ensure the accused appears in court while avoiding unnecessary detention. In Australia, bail is not automatically granted and requires approval from either the court or the police.
Key Factors for a Successful Bail Application
Who provides bail money?
- Bail money is usually paid by the accused’s relatives or close friends, as they can exert influence on the accused to comply with bail conditions.
Amount of Bail Money
- Unlike the high bail amounts often seen in the United States, bail in Australia is generally lower.
- The amount depends on the nature and severity of the case and, in some instances, the financial status of the accused and the surety provider.
- The accused must reside at a designated address and may face restrictions on their movement.
- If the accused can demonstrate strict compliance with bail conditions, they may apply for an extension of their movement range or a relaxation of bail conditions.
- Most bail conditions require the accused to report regularly to the police.
- For felony offences, the accused may need to report to a designated police station daily.
- Failure to report may result in bail revocation. If this happens, contact your defence lawyer immediately.
- The timing of the bail application is crucial.
- If the police lack sufficient evidence at the time of arrest, applying for bail early may increase the chances of success.
- Conversely, if the prosecution has more time to gather evidence, the judge may be less likely to grant bailIn many cases, the initial charges may be exaggerated, but as the case progresses, the police may struggle to provide sufficient evidence, increasing the likelihood of bail being granted.
- This is often the case in major criminal cases or Show Cause bail applications.
Bail Refund Process
Can Bail Money Be Refunded?
If the accused complies with all bail conditions and attends court as required, the bail money will be fully refunded at the conclusion of the case. The refund process typically involves:
- Obtaining the case outcome notice.
- Submitting the notice to the court where the bail was paid.
- Receiving the refund in the form of a check from the court.
Using Property or Land Title as Surety
If property or land title is used as bail security, the refund process is more complex and may require additional legal procedures.
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Bail Application Tests
For serious offences (such as murder, or major drug offences), the accused must prove that detention is unreasonable or that there are exceptional circumstances (e.g., severe medical conditions requiring regular treatment, serious family hardships). If the accused fails to meet this test, bail will be denied.
Under New South Wales law, the following offenses require a Show Cause bail application:
BAIL ACT 2013 – SECT 16B Offences to which the show cause requirement applies 16B Offences to which the show cause requirement applies
(1) For the purposes of this Act, each of the following offences is a
“show cause offence” —
(a) an offence that is punishable by imprisonment for life,
(b) a serious indictable offence that involves–
(i) sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or
(ii) the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years,
(c) a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence,
(c1) a serious domestic violence offence,
(c2) an offence under the Crimes Act 1900 , section 54D,
(d) any of the following offences–
(i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a firearm,
(ii) an indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place,
(iii) a serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm,
(e) any of the following offences–
(i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon,
(ii) an indictable offence that involves the unlawful possession of a military-style weapon,
(iii) a serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon,
(f) an offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act,
(g) an offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code,
(h) a serious indictable offence that is committed by an accused person–
(i) while on bail (whether granted under this Act or a law of another jurisdiction), or
(ii) while on parole (whether granted under a law of this State or another jurisdiction),
(i) an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order,
(j) a serious indictable offence of attempting to commit an offence mentioned elsewhere in this section,
(k) a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section,
(l) a serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under–
(i) this Act, or
(ii) Part 7 of the Crimes (Administration of Sentences) Act 1999 , or
(iii) the Criminal Procedure Act 1986 , or
(iv) the Crimes (Sentencing Procedure) Act 1999 .
Even if the accused passes the Show Cause Test, the court will assess whether the accused poses any of the following risks:
- Failing to appear in court.
- Reoffending while on bail.
- Threatening public safety.
- Interfering with witnesses or evidence.
- Attempting to flee.
If the court determines that bail conditions can effectively mitigate these risks, bail will be granted; otherwise, bail will be denied.
Bail Applications for Serious Crimes
Applying for bail in serious cases (e.g., armed robbery, large-scale drug offences) is more difficult. Here are two real-life examples:
A defendant charged with armed robbery applied for bail, citing the need to care for their newborn child and sick mother. However, the court found these reasons insufficient to justify release and denied the bail application.
A defendant charged with possession of a large quantity of illicit drugs offered a high bail amount. However, since he was a foreign national with no family or social ties in Australia, the court considered him a flight risk and denied bail.
How to Improve Bail Success Rates?
- Apply at the Right Time: A legal expert can assess the best timing for a bail application to maximize success.
- Provide a Strong Surety: A reliable surety provider, preferably a close relative or trusted individual, increases the court’s confidence in compliance with bail conditions.
- Prepare Comprehensive Documentation:
o Proof of residence, financial stability, and other supporting materials can demonstrate that the accused is not a flight risk or a repeat offender. - Engage an Experienced Lawyer:
o A skilled lawyer can identify weaknesses in the prosecution’s case and persuade the court to grant bail.
Seek a Criminal Lawyer for Bail
If you or a loved one is facing criminal charges and wishes to apply for bail, the Brightstone Legal criminal defence team is here to provide expert legal support.
With extensive experience in bail applications, we will help you achieve the best possible outcome. Contact us today for a free consultation!
Disclaimer
This article is for informational purposes only and does not constitute legal advice. For specific legal issues, please consult a qualified lawyer.
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