Leading Criminal Defence Lawyers | Bail Application

 When a person is charged with criminal offences the Police have discretion to either release the person without bail conditions, release a person with bail conditions or refuse to release them. If Police refuse, the person will be taken to Court and they will make a determination as to whether a person should be released or kept in custody. A person will remain in custody until they either receive bail or their matter is completed. 

“Show Cause” 

When considering whether to grant bail, the Court first needs to consider whether the accused person is charged with a “Show Cause” offence. Show Cause offences are serious offences which are set out in 16B of the Bail Act 2013. If charged with a Show Cause offence, the accused is required to show cause for why their detention is not justified, in order to receive bail. If not charged with a Show Cause offence, the person moves to the next stage. 

“Unacceptable risk” 

The Court then needs to consider whether there are any unacceptable risks associated with the grant of bail. 

The first step is to whether there are any concerns with releasing the accused person on bail. These can include: 

1. fail to appear at any proceedings for the offence; or
2. commit a serious offence; or
3. endanger the safety of victims, individuals or the community; or
4. interfere with witnesses or evidence.

In considering whether there is a bail concern, the Court can take into consideration the following matters outlined in the Bail Act 2013: 

• the accused’s background (including criminal history, circumstances and community ties): s 18(1)(a)
• the nature and seriousness of the offence: s 18(1)(b)
• the strength of the prosecution cases: s 18(1)(c)
• whether the accused has a history of violence: s 18(1)(d)
• whether the accused has previously committed a serious offence while on bail: s 18(1)(e)
• the accused’s history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders, good behaviour bonds, intensive correction orders, home detention orders, community service orders, community correction orders, conditional release orders, non-association and place restriction orders and supervision orders (s 18(1)(f)), and where a breach of bail is alleged, any warnings issued by police or bail authorities regarding non-compliance with bail acknowledgements or conditions (s 18(1)(f1))
• whether the accused has any criminal associations: s 18(1)(g)
• the length of time the accused is likely to spend in custody if bail is refused: s 18(1)(h)
• likelihood of a custodial sentence being imposed if the accused is convicted of the offence: s 18(1)(i)
• if convicted but not sentenced the likelihood of a custodial sentence being imposed: s 18(1)(i1)
• whether the appeal against conviction or sentence pending before a court has a reasonably arguable prospect of success: s 18(1)(j)
• any special vulnerability or needs the accused has including being an Aboriginal or Torres Strait Islander or because of youth or having a cognitive or mental health impairment: s 18(1)(k)
• the accused’s need to be free to prepare for his or her appearance in court or to obtain legal advice: s 18(1)(l)
• the accused’s need to be free for any other lawful reason: s 18(1)(m)
• the conduct of the accused towards any victim of the offence or any family member after the offence: s 18(1)(n)
• for a serious offence, the view of any victim or any family member of the victim (if available) in assessing if the accused could endanger the safety of victims, individuals or the community: s 18(1)(o)
• the bail conditions that could be reasonably imposed to address bail concerns: s 18(1)(p).
• whether the accused has any associations with a terrorist organisation (within the meaning of Div 102 Pt 5.3 of the Commonwealth Criminal Code): s 18(1)(q)
• whether the accused has made statements or carried out activities advocating support for terrorist acts or violent extremism: s 18(1)(r)
• whether the accused has any associations or affiliations with any persons or groups advocating support for terrorist acts or violent extremism: s 18(l)(s).

The second step is, based on these bail concerns, what bail conditions can be brought in to ameliorate these bail concerns. An example of common conditions include: 

• That the accused reside at a certain address; 
• That the accused avoid a certain area or people such as victims and witnesses; 
• That the accused not drink alcohol or take illicit drug; 
• That the accused participate in rehabilitation; and
• That the accused report to a Police station a number of times a week.

If the Court is able to address the bail concerns then it will grant bail on said conditions. If not, then the Court will refused bail and the individual will remain in custody.

Applications for bail have considerable repercussions on accused persons and if not done appropriately, people can remain in custody for long periods of time. If you or a love one has been taken into custody and requires assistance for a bail application please do not hesitate to reach out and contact us at (02) 8080 7585 to discuss the matter with an experienced criminal lawyer.

Green & Associates Solicitors Experience and Success 

Bail Granted in the Local Court for Show Cause – Wound Person with Intent to Cause GBH

In a complex legal matter, we were able to secure bail for our client who was facing serious charges of wounding a person with intent to cause grievous bodily harm (GBH). This is a show cause offence, meaning that the burden was on our legal team to demonstrate why our client should be granted bail.

Our client had a prior criminal record, which ordinarily would make obtaining bail considerably challenging. However, we were able to present compelling evidence of unique medical circumstances that justified the grant of bail. These circumstances were such that our client’s health and well-being would be severely compromised if they were to remain in custody pending trial.

With strong legal arguments and persuasive representations, we successfully convinced the court to grant bail to our client. This decision was crucial as it allowed our client to await trial outside of custody, ensuring their access to appropriate medical care while maintaining their presumption of innocence.

Bail Granted in the Local Court for Kidnapping / Damage Property by Explosion

In a highly complex and challenging legal situation, we were able to secure bail for our client who was facing serious charges of kidnapping and damaging property by explosion. These charges carried significant penalties and were compounded by our client’s considerable prior criminal record, which would typically make obtaining bail extremely difficult.

To bolster our case for bail, we tendered comprehensive research on the recovery and rehabilitation process for individuals who had suffered severe burns injuries. This research underlined the importance of our client’s access to specific medical treatments and rehabilitation services that were best suited to their unique circumstances. It was crucial in demonstrating to the court that our client’s well-being and recovery were of paramount concern. 

Our diligent legal work and the compelling evidence we presented allowed us to successfully secure bail for our client. This decision was pivotal in enabling our client to prepare for their trial while accessing the necessary medical care and support tailored to their needs.

In addition to the above, our defence lawyers have obtained bail for a client caught with large commercial quantity of drugs, other commercial quantities of drugs, weapons, firearms in the home, indicia of drug supply, tens of thousands of dollars in cash alleged to be proceeds of crime, and in breach of 2 x intensive correction orders at the time the home was raided;

• Our defence lawyers have obtained bail for a client charged with dozens of break and enter and stolen goods in custody offences in breach of bail and bonds with an extensive criminal record including prison time;
• Our solicitors have obtained bail for client on the first Court date charged with several assault Police offences with a prior record of doing so;
• Our team have obtained bail for a client already awaiting trial for commercial drug supply when charged and refused bail for seven further serious offences; and
• We have successfully obtained dozens of show cause bail applications in difficult circumstances.

We also provide expert legal representation across a broad range of matters, including other criminal matters (and appeals) and:

• employment-law issues (i.e. enforcing or dispute a restraint of trade clause for previous or new employees);
• compliance and regulatory issues (i.e. licencing and underquoting breaches);
• property matters;
• defamation proceedings; and
• all types of commercial matters