How to obtain bail

Introduction

"Bail" is the release of a person who is under arrest or who has already appeared in court, in exchange for a promise to appear in court when scheduled.

When you've been arrested the Police have a discretion to grant you bail ("Police bail") if they're unable to bring you before you before a judge immediately (for example, if you're arrested in the weekend).

When you first appear in court (whether or not you have been arrested), your lawyer or the Duty Solicitor will apply for bail ("court bail") on your behalf.

The laws governing when you can and cannot be bailed are contained in the BAIL ACT 2000. That Act introduced some new restrictions on when bail can be granted to people charged with serious violent offences or with offending while on bail.

Police bail

If you're arrested and charged by the Police, and it's not possible for them to bring you before a court immediately (usually because you were arrested on the weekend), the Police may decide to release you on bail until your first court appearance. The bail comes to an end when you appear in court and you'll then need to apply for court bail instead (see below).

If the Police don't grant you bail, you'll be held in Police custody until you're taken to court, at which point you can apply to the court for bail.

Bail is normally granted unless there is good reason to believe that you will not turn up to court, or that you are likely to be a danger to the community (for example, through re-offending, or tampering with evidence or witnesses). Police bail is not normally granted for more serious offences such as serious assault or burglary.

The Police have the power to require you to provide a "surety" (a person who enters into a binding promise) or to deposit a sum of money as a bail bond, but in practice this seldom occurs. The Police instead usually impose certain conditions, the most common ones being that you give a residential address, that you have a curfew, and that you do not associate with co-offenders.

Court bail

If you've been released on Police bail, you'll need to apply to the court for bail when you first appear in court. When the Police don't oppose the court granting bail, the decision to bail you is normally made by the Registrar, rather than by the judge.

If you've been arrested and the Police have refused to grant you bail, the issue will be decided by a judge. Similarly, if you're appearing in court (whether or not you have been arrested) and the Police oppose bail, the issue is dealt with by the judge.

If you don't have your own lawyer to apply to the judge on your behalf, make sure you speak to the Duty Solicitor at the court about applying for bail. The Duty Solicitor's services are free. The Duty Solicitor will then formally ask the judge for bail.

You're entitled to court bail as of right in certain cases. In other cases whether or not you're granted bail will depend on a number of factors.

When am I entitled to court bail as of right?

If you're charged with certain offences you'll get court bail as of right:

  • offences that aren't punishable by imprisonment
  • offences for which the maximum punishment is less than three years' imprisonment (except if the offence is an assault on a child or a breach of a protection order under the Domestic Violence Act 1995)
  • a number of specific offences under the CRIMES ACT 1961 (these are mainly dishonesty offences or failing to provide the necessaries of life to people in your care)

But this is subject to the rule that you are not bailable as of right if you have previously been convicted of an offence punishable by imprisonment and you are now being charged with an offence punishable by imprisonment.

What if I'm not bailable as of right?

If you aren't bailable as of right, the court must release you on reasonable terms and conditions unless it's satisfied that there is "just cause" for bailing you. There are three main factors that the court must take into account in deciding this:

  • whether there's a risk you won't turn up for your next court appearance
  • whether there's a risk that you'll interfere with evidence or witnesses, and
  • whether there's a risk that you'll commit an offence while you're on bail

The judge can also consider the following factors:

  • how serious the charge is
  • how strong the case is against you
  • how serious the likely punishment would be
  • your general character and past conduct (in particular, any criminal record that you have)
  • whether you have a history of committing offences while on bail or of breaching court orders or bail conditions
  • when your next court appearance is likely to be
  • whether it will be harder for you to prepare your defence if you're not released on bail, and
  • any other special factors that are relevant

If the judge refuses to grant you bail, you'll be held in Police custody and then taken to the nearest prison.

Special bail rules for people under 20

If you're under 20 and you're appearing in the adult courts, the court must release you on bail if your case is remanded, including when you're waiting for trial or sentencing.

But even if you're under 20, you'll be subject to the following special restrictions on when bail can be granted.

Special rules for violent offences and for people who've offended on bail

There are special restrictions on when you can be bailed if you're charged with one of a number of serious violent offences and you already have convictions for one of those offences. In these situations the court Registrar can't bail you – bail must be decided by a judge instead. You'll have to convince the judge that you should be bailed, otherwise you won't get it. In particular, you must satisfy the judge that you won't commit any violent offences while you're on bail if you're released.

Similar restrictions apply if you're charged with committing an offence when on bail or remanded at large, or if you have long lists of convictions and have in the past been convicted of committing an offence when on bail or remanded at large. Again, you can be bailed only by a judge, and you bear the burden of convincing the judge that you should be bailed. In particular, you must satisfy the judge that you won't commit any violent offences while you're on bail, nor burglary or any other serious property offence.

Bail conditions

If the court grants you bail, you'll be released on the condition that you return on the date of your next appearance, and subject also to other conditions that may be imposed, which commonly include:

  • having to live at a particular place
  • having no contact with the victim
  • a curfew
  • having to report to the Police while on bail

The court has no power to require a sum of money as a condition of bail.

What happens if I breach a bail condition?

If you're granted bail and you breach any condition of your bail, you can be arrested. It is likely that your bail will then be revoked.

Further, if you're on bail and you fail to turn up at court when you're supposed to, you commit an offence that is separate from and in addition to the original offence for which you were granted bail. For more information, see How to: Breach of bail.

Can I appeal if the judge won't grant me bail?

Yes. You can appeal to the High Court against the District Court judge's decision. It may take up to 10 days before your appeal is heard.

Cautionary notes
  • If you're appearing in court for the first time and you don't have your own lawyer, make sure you see the Duty Solicitor, who will provide you with free legal advice and representation for that first appearance (see How to: Facing criminal changes). The Duty Solicitor is usually busy, so arrive at court early to give plenty of time for him or her to discuss your case with you.
  • If you wish to appeal to the High Court against a District Court judge's refusal of bail, you should contact a lawyer. If you can't afford your own lawyer you'll be entitled to obtain a lawyer through legal aid: see How to obtain criminal legal aid.


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