As a general rule, an accused person is entitled to their freedom until their case is resolved. The most important consideration when a court is deciding whether to grant bail is whether or not the person will appear in court if they are granted bail. Bail applications need to be handled with care and urgency.
Bail might be refused for a range of reasons. The most important of those is whether the court thinks there is a real risk that the accused will not come to court if they are bailed. There are some offences, such as family violence offences, where there is a presumption against bail being granted. In the case of murder, the accused must show that there are exceptional circumstances that apply before being granted bail. Important considerations when deciding a bail application include:
Bail conditions are special rules that apply to a person when they are granted bail. The most obvious and common condition is a condition that they attend at court when the case goes to court. Other conditions are aimed at addressing particular risks of a case. For example, if a person is accused of committing burglaries at night, then a condition that they be at home between 8pm and 6am might be one way of addressing the risk to the community.
Family violence legislation changes the normal rules about bail. Section 12 of the Family Violence Act says
A person charged with a family violence offence is not to be granted bail unless a judge, court or police officer is satisfied that release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child.
While this makes bail applications for family violence offences harder than for other offences, it is not impossible to be granted bail. If you know someone who needs help with a bail application please get in touch today.
A person subject to a bail order can apply to court to have their conditions varied. For example, if a person subject to bail has a condition that they live at one address and they want to move house, they will need to make an application to vary bail before moving.
If a person is refused bail by a Magistrate they can appeal that decision to the Supreme Court. Any appeal must be made within 21 days of the refusal to grant bail. If someone you know has been refused bail by a Magistrate it is important to act quickly and get legal advice as soon as possible.
It is possible to get legal aid funding for bail applications but whether or not you will be granted funding depends on your eligibility for legal aid.
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