Bail is an undertaking (or agreement) that a person facing criminal charges will comply with conditions and attend Court to face the charges against them. If a person’s bail application is rejected, they will remain in custody until their court date. Our lawyers appear regularly in applications for bail in the Children’s Court; Magistrates’ Court; County Court and Supreme Court. We are experts in advising when to make an application for bail, preparing the application and appearing before the Court to give you the best possible chance of a successful application.
The Bail Act of Victoria contains a basic presumption that an accused person is entitled to bail. Due to Victorian bail law reforms, the Bail Act has been amended to make it more difficult for an accused person to be awarded bail. There is a two step process for each application for bail.
If you are charged with certain offences, you may be required to persuade a judicial officer (a Magistrate or Judge) that there are compelling reasons or exceptional circumstances that warrant releasing you on bail. While previously the ‘exceptional circumstances’ test only applied to serious offences, it now covers all manner of criminal offences and circumstances. Showing the Court that compelling reasons or exceptional circumstances exist requires your lawyer to make submissions on the strength of the case against you; your personal circumstances and any other number of relevant issues.
The second step is assessment of risk. The ‘unacceptable risk’ test also applies to every offence. If the Court is of the view that you are an unacceptable risk that you would endanger the safety of others, commit further offences on bail, interfere with witnesses or fail to comply with any conditions of bail, then bail will be refused. The prosecution is required to prove that the risk exists and that it is unacceptable. If the prosecution cannot prove that an unacceptable risk exists, then bail must be granted.
If you want to apply for bail, hiring an experienced bail application lawyer is important as it can be a delicate process.
At Stary Norton Halphen bail applications are a constant part of our day-to-day practice. We are therefore well equipped to advise our clients, their families and their supporters about what is needed; when to list; and what matters ought to be put to the court, to give our clients the best opportunity of successfully applying for bail whether that application is heard in the Children’s Court, the Magistrates’ Court, the County Court or the Supreme Court.
If you’re in need of the expert advice of a bail application lawyer, contact the team at Stary Norton Halphen.
Knowing when to proceed with a bail application is critical. In some situations, it is best to proceed immediately. In other situations, it is best to wait. An experienced criminal defence lawyer understands that the timing of a bail application may well be the most important decision they make in their client’s endeavour to get bail.
There are many reasons why the timing of a bail application is important, the most significant being that once a person is refused bail it is very difficult to successfully apply for bail again in the future. Therefore, refraining to run a bail application early when the circumstances of the case call for it or alternatively running a bail application hastily which is not yet ready to proceed can and often does result in bail being refused. Worse still, unless a person can demonstrate new facts and circumstances or successfully appeal an initial decision to refuse bail, they will remain in custody until their trial is heard.
The ability to provide expert advice in relation to the timing of a bail application comes from our experience in appearing in successful applications in all Victorian Courts.
Whether a bail application is run straight away or not, it needs to be well prepared. A bail application also needs to be targeted and address the concerns a court might have about releasing a person on bail. Are they a flight risk? Will they commit an offence while on bail? Will they interfere with a witness? Will they endanger a member of the community? An experienced criminal lawyer will anticipate what concerns a court will have and ensure that those concerns are addressed. Depending on the circumstances of the case this will require a defence lawyer to ensure that when they run the bail application, they have evidence of things like:
a suitable and appropriate address for the accused to reside at if released on bail;
treatment and support being available should the accused person have addiction or mental health issues;
employment being available to the accused person if they are granted bail; and/or
a surety being available.
Preparation is critical in ensuring the court is provided with evidence supporting a person’s application for bail. Whether a bail application lawyer arranges for a witness to attend court to give evidence, or obtains a report from an expert or a letter of support from an employer, there are many things that they will have needed to organise to give their client the best opportunity to successfully apply for bail.
There are different bail tests depending on the offence with which a person has been charged. The three different tests for bail are:
Entitlement to bail - bail must be granted unless the prosecution is able to satisfy the court that a person is an unacceptable risk of failing to attend court, committing an offence, interfering with a witness or endangering the welfare of any person.
Compelling reasons - bail must be refused unless the accused person is able to satisfy the court that compelling reasons exist that justify the granting of bail. If the accused person does so satisfy the court, the court will then consider if that person is an acceptable risk.
Exceptional circumstances - bail must be refused unless a judicial officer is satisfied that exceptional circumstances exist that justify the granting of bail. If the accused person does so satisfy the court, the court will then consider if that person is an acceptable risk.
The relevant bail test is very important. It may make achieving bail very difficult (e.g. exceptional circumstances) or it may mean it is an exercise which focuses squarely on whether or not the risks associated with granting a person bail are acceptable (e.g. entitlement to bail). An experienced criminal lawyer will be aware of which bail test is applicable. It will inform their advice, focus their preparation and impact on the strategy they employ when running the application itself.
If you are charged with a criminal offence, it’s important to get legal advice as soon as possible. An experienced criminal lawyer will advise you on whether or not to apply for bail, when to apply for bail, and help you prepare your application.
You can generally only apply for bail once, unless there are exceptional circumstances, which is why having an experienced bail application lawyer work with you is crucial to ensure the best opportunity for success.
If a family member or a friend has been arrested by the police and remanded into custody, contact us immediately on (03) 8622 8200 or, if it is the weekend or after hours, on 0407 410 821.
Advice from a competent and experienced criminal lawyer before you are interviewed can and often does have a meaningful impact on the outcome of your case and in some instances, is the difference between whether your matter proceeds to court or not.
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Doyle's Guide First Tier Criminal Law firm (2020, 2021 and 2022).
