Criminal Law - Need info on Bail, read this!

Date: September 25, 2008

Authors: LAC Lawyers

What is Bail?
 
Section 4 of The Bail Act 1978 (the “Act”) defines bail as "authorisation to be at liberty under the Act, instead of in custody.
 
Essentially bail means a right to be released from custody provided that you obey any Court imposed conditions including returning to Court as and when required.

If I am charged with a “minor offence” will I be released on Bail?

An offence that is not punishable by a sentence of imprisonment (except defaulting on payment of a fine) or an offence under the Summary Offences Act 1988 that is punishable by a sentence of imprisonment is deemed as a minor offence and as such you have the right to be released on bail. See section 8 (1) of the Act.

There are however a number of circumstances where you are not entitled to Bail even though you have committed a minor offence, these include the following in accordance with section 8(2) of the Act:

  1. You have previously failed to comply with a bail undertaking or condition imposed in respect of the offence;
  2. You are, in the opinion of the authorised officer or the court, incapacitated by intoxication, injury or use of a drug or are otherwise in danger of physical injury or in need of physical protection;
  3. You stand convicted of the offence or your conviction for the offence is stayed, or
  4. The requirement for bail is dispensed with by the court in accordance with section 10 of the Act and

You are entitled to be granted bail either:

  1. Unconditionally; or
  2. Subject to bail conditions.
You are also entitled to bail under section 8(3) of the Act in respect of a relevant offence irrespective of whether you are in custody for some offence in which you are not entitled to bail for that offence.

However, you will not be entitled to bail under section 8(4) if you are in custody serving a sentence of imprisonment in connection with some other offence and the court is satisfied that you are likely to remain in custody in connection with that other offence for a longer period than that for which bail in connection with the first offence would be granted.

What are the criteria for Bail?

The criteria for consideration of bail are set out in section 32 of the Act and include the following:

  1. Probability of whether or not you will appear in court with respect to the offence in question. Your background, community ties, residence, family, prior record, employment, prior failure to appear at court, circumstances of the offence, penalty for the offence are all factors taken into account;
  2. Your Interests; including the time you would have to spend in custody, freedom to prepare for court and obtain legal advice or other factor, whether you are incapacitated by intoxication, injury or use of a drug or are otherwise in danger of physical injury or in need of physical protection; and
  3. Protection of the victim of the offence, the victims close relatives, any other person the court deems in need of protection, and the welfare of the community.
When considering the protection and welfare of the community the following factors are taken into account:
  1. The nature and seriousness of the offence and in particular whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon;
  2. Whether or not the you have breached any bail conditions;
  3. Whether you are likely to interfere with evidence, witnesses or jurors, and
  4. Whether you are likely to commit any serious offence while on bail.
Will I get bail if I am charged with a drug offence?

If you have been charged with the cultivation, manufacture, importation and supply of the commercial quantity of prohibited drugs then there is a presumption against bail in accordance with section 8A of the Act. Irrespective of this presumption you may still be granted bail after all factors including those outlined above are taken into consideration.

Will I get bail if I have been charged with an offence of Domestic Violence?

There is a presumption against bail for certain domestic violence offences and contravention of apprehended domestic violence orders. See section 9A of the Act. The Crimes (Domestic and Personal Violence) Act defines a domestic violence offence as a “personal violence offence committed by a person against another person with whom the person who commits the offence has or has had a domestic relationship”.  Again you may still be granted bail after all factors including those outlined above are taken into consideration.

How are other offences viewed by the courts?

There is no presumption for or against bail for some offences such as murder, attempted murder, aggravated sexual assault, aggravated or armed robbery, certain drug offences including offences relating to twice the indictable quantity. See section 9 of the Act.

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