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Legal Corner

Bail: Common Questions

Answering your questions about bail

By

Meg Tait and About Time (with help from Uther Webster & Evans Solicitors and Daniel Vansetten)

This is information and not legal advice.

Willy Pleasance

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What is bail?

Bail is a promise you can make that you will return to court. It means you can stay in the community (instead of jail) until your legal matters finish. If you are being held in custody and you haven’t been found guilty, you may be able to apply for bail. If you are not granted bail, you will be remanded – to be ‘on remand’ means you are waiting in prison for your legal matter to finish.

When you are first taken into police custody, the police may decide to release you on bail. If they don’t release you from custody, they must take you before a bail decision-maker within a certain timeframe. In the first instance, you may apply for bail before a bail justice or justice of the peace – this often happens if you are taken into custody at times courts are not open/operating (for example, at night or over the weekend). If the bail decision-maker does not agree to release you on bail, you will then be presented before a court.

Applying for bail

When can I apply for bail?

When you are first taken into custody, you would have had the opportunity to ask to be released into the community on bail. The person who decides whether you can stay in the community may be a justice of the peace, a bail justice, or a magistrate. The person making the decision will hear about what the police say you have done and information about previous times you have been in trouble with the law.

I’ve been refused bail once. Can I apply again?

Yes.

If you were refused by a bail justice, you can apply for bail from a magistrate.

If bail is refused by a magistrate, the law for applying again varies slightly depending on the jurisdiction. In practice you can apply again, but you’ll likely need new material information and/or a change in circumstances to be allowed to do so (and to be successful).

What is “material information/facts” or a “change in circumstances”?

There’s no definitive answer, but these could include:

  1. Availability of new conditions/services to reduce any ‘risk’: often bail can be refused because the decision-maker thinks there is too much of a risk that a person will keep getting into trouble when they’re back in the community. If you are able to sign up to a service or program that addresses this risk, the court may reconsider whether you should be able to wait in the community instead of on remand. These programs/services might include things like:
    Being able to sign up for an ankle bracelet or some kind of electronic monitoring regime;  
    Acceptance into a bail support program (these often involve supervision by people who work for the court);
    Acceptance into a residential rehab or similar intensive support program;
    Acceptance into a supervised housing program (particularly if you were sleeping rough/homeless before you were placed on remand)
  2. Big changes in your personal circumstances: if something has really changed in your family/work/personal life since you last applied for bail, then you can apply for bail again so the Court can hear about how this change is impacting you. This might include things like changes to your health, changes to the health of a family member, or changes to your employment.
  3. Big changes to your case: often a first application for bail is made when the evidence against you is still being prepared by the police. In some cases, big changes relating to your case or the evidence against you will mean you are able to apply again for bail – this might include things like:
    The police agreeing to withdraw certain charges because they don’t have enough evidence against you;
    New material being provided to you/your lawyer which changes the case;
    Your co-accused being granted bail (although this will not always mean you will get bail);
    Your court case being delayed.

How to prepare a second or subsequent bail application?

If you think any of the above may be relevant to you, it is recommended you seek advice from a lawyer. In practice, the challenge is not only to show the Court that there are new facts or a change in circumstances, but also that the change is so significant as to overturn an earlier ruling. If you do have a chance, your legal preparation must be comprehensive and backed by evidence.

Appeal to the Supreme Court

There’s also an option to appeal or review a magistrate’s decision to the Supreme Court. The application will be treated as a fresh application. If the appeal to the Supreme Court is unsuccessful, you can still make further applications for bail. You just need to provide new material or a change in relevant circumstances.  

Getting Bail

What will make a judge or magistrate say yes to bail?

The rules about bail are different depending on which state you are in. You should talk to your lawyer so they can give you advice about what rules apply to you.

The person deciding about your bail will be thinking about many things, including:

  • Will you come back to court? They will be unlikely to say yes to bail if they think you are going to abscond (run away).
  • Will you stay out of trouble with the police if you stay in/return to the community? They will be unlikely to say yes to bail if they think you will commit more crimes while you are waiting for your legal matter to end.
  • Will you pose a danger to people in the community if you are released from prison? They will be unlikely to say yes if they think you might hurt someone or make other people unsafe.

You will also have the chance to talk about things relating to the connections you have in the community:  

  • Your job, training or education
  • Your family responsibilities
  • Your address and what support you have in the community
  • Any programs (including bail support programs) you will be able to participate in

Information for Aboriginal people applying for bail

You should make sure any bail decision maker (police officer, judge, bail justice, magistrate or justice of the police) are aware of your Aboriginality when you are asking to be released on bail.

This is information the decision-maker can take into consideration when making the decision about whether or not you can be released from custody.

The police should also notify the relevant Aboriginal services in your state or territory if you are being held in police custody. You may also be able to get free legal advice from your local Aboriginal legal service – contact details are below.

What is bail?

Bail is a promise you can make that you will return to court. It means you can stay in the community (instead of jail) until your legal matters finish. If you are being held in custody and you haven’t been found guilty, you may be able to apply for bail. If you are not granted bail, you will be remanded – to be ‘on remand’ means you are waiting in prison for your legal matter to finish.

When you are first taken into police custody, the police may decide to release you on bail. If they don’t release you from custody, they must take you before a bail decision-maker within a certain timeframe. In the first instance, you may apply for bail before a bail justice or justice of the peace – this often happens if you are taken into custody at times courts are not open/operating (for example, at night or over the weekend). If the bail decision-maker does not agree to release you on bail, you will then be presented before a court.

Applying for bail

When can I apply for bail?

When you are first taken into custody, you would have had the opportunity to ask to be released into the community on bail. The person who decides whether you can stay in the community may be a justice of the peace, a bail justice, or a magistrate. The person making the decision will hear about what the police say you have done and information about previous times you have been in trouble with the law.

I’ve been refused bail once. Can I apply again?

Yes.

If you were refused by a bail justice, you can apply for bail from a magistrate.

If bail is refused by a magistrate, the law for applying again varies slightly depending on the jurisdiction. In practice you can apply again, but you’ll likely need new material information and/or a change in circumstances to be allowed to do so (and to be successful).

What is “material information/facts” or a “change in circumstances”?

There’s no definitive answer, but these could include:

  1. Availability of new conditions/services to reduce any ‘risk’: often bail can be refused because the decision-maker thinks there is too much of a risk that a person will keep getting into trouble when they’re back in the community. If you are able to sign up to a service or program that addresses this risk, the court may reconsider whether you should be able to wait in the community instead of on remand. These programs/services might include things like:
    Being able to sign up for an ankle bracelet or some kind of electronic monitoring regime;  
    Acceptance into a bail support program (these often involve supervision by people who work for the court);
    Acceptance into a residential rehab or similar intensive support program;
    Acceptance into a supervised housing program (particularly if you were sleeping rough/homeless before you were placed on remand)
  2. Big changes in your personal circumstances: if something has really changed in your family/work/personal life since you last applied for bail, then you can apply for bail again so the Court can hear about how this change is impacting you. This might include things like changes to your health, changes to the health of a family member, or changes to your employment.
  3. Big changes to your case: often a first application for bail is made when the evidence against you is still being prepared by the police. In some cases, big changes relating to your case or the evidence against you will mean you are able to apply again for bail – this might include things like:
    The police agreeing to withdraw certain charges because they don’t have enough evidence against you;
    New material being provided to you/your lawyer which changes the case;
    Your co-accused being granted bail (although this will not always mean you will get bail);
    Your court case being delayed.

How to prepare a second or subsequent bail application?

If you think any of the above may be relevant to you, it is recommended you seek advice from a lawyer. In practice, the challenge is not only to show the Court that there are new facts or a change in circumstances, but also that the change is so significant as to overturn an earlier ruling. If you do have a chance, your legal preparation must be comprehensive and backed by evidence.

Appeal to the Supreme Court

There’s also an option to appeal or review a magistrate’s decision to the Supreme Court. The application will be treated as a fresh application. If the appeal to the Supreme Court is unsuccessful, you can still make further applications for bail. You just need to provide new material or a change in relevant circumstances.  

Getting Bail

What will make a judge or magistrate say yes to bail?

The rules about bail are different depending on which state you are in. You should talk to your lawyer so they can give you advice about what rules apply to you.

The person deciding about your bail will be thinking about many things, including:

  • Will you come back to court? They will be unlikely to say yes to bail if they think you are going to abscond (run away).
  • Will you stay out of trouble with the police if you stay in/return to the community? They will be unlikely to say yes to bail if they think you will commit more crimes while you are waiting for your legal matter to end.
  • Will you pose a danger to people in the community if you are released from prison? They will be unlikely to say yes if they think you might hurt someone or make other people unsafe.

You will also have the chance to talk about things relating to the connections you have in the community:  

  • Your job, training or education
  • Your family responsibilities
  • Your address and what support you have in the community
  • Any programs (including bail support programs) you will be able to participate in

Information for Aboriginal people applying for bail

You should make sure any bail decision maker (police officer, judge, bail justice, magistrate or justice of the police) are aware of your Aboriginality when you are asking to be released on bail.

This is information the decision-maker can take into consideration when making the decision about whether or not you can be released from custody.

The police should also notify the relevant Aboriginal services in your state or territory if you are being held in police custody. You may also be able to get free legal advice from your local Aboriginal legal service – contact details are below.

Legal Q&A

Do you have a general legal query that you want answered?

Submit Your Question

Being released on bail

Being released on bail can be a stressful and confusing time. Here are some answers to common questions – and where you can get more information about your bail conditions.

What will I have to do if I’m released on bail?

When you are released on bail you might be subject to certain ‘conditions’ – these can be things you have to do (such as living at a particular address), or things you can’t do (such as being out after a specific time at night).

What you must and mustn’t do depends on your conditions. These will be read out to you at your bail hearing and a copy should be provided to you when you leave custody. Your lawyer should also send you a copy and will be able to answer questions you have. The police and the court will also have a copy of your conditions.

Even if you have been on bail before, you must check your bail conditions carefully as they probably will be different to the last time you were on bail. You should speak to your lawyer as soon as possible after your bail application to make sure you understand the conditions.

How long will I be on bail for?

This depends on your case. Usually, you will remain on bail until your case is finished (when the charges are withdrawn, you plead guilty, or are found guilty/not guilty).

How can I change my bail conditions?

Your bail conditions are a court order – this means to change them, or have conditions taken away, you must apply to the court. This means a magistrate or judge will be the person who decides whether you can change your bail conditions.

If you want to change your bail conditions, you should speak to a lawyer immediately. They can help you send the paperwork to the court and let the police know you would like a change.

Often it takes several days to get a court date. It may be faster if the police are planning to say yes to your change. You should ask your lawyer to speak to the police about the change to see if they will agree or disagree with what you are asking for.

What happens if I can’t follow my bail conditions?

You can be charged with another offense every time you don’t do what you are meant to do on bail. You can also have your bail ‘revoked’, which means you may return to custody. This is why it is very important to let your lawyer know if you are having any issues while you are on bail.

If you don’t have a lawyer but would like legal advice, please contact either the legal aid commission of the state and territory you are in, or the Aboriginal legal service if you identify as Aboriginal and/or Torres Strait Islander.

If you have any further questions, please send them to us and we will endeavour to answer them! Note we cannot provide individualised legal advice, only information.

Being released on bail

Being released on bail can be a stressful and confusing time. Here are some answers to common questions – and where you can get more information about your bail conditions.

What will I have to do if I’m released on bail?

When you are released on bail you might be subject to certain ‘conditions’ – these can be things you have to do (such as living at a particular address), or things you can’t do (such as being out after a specific time at night).

What you must and mustn’t do depends on your conditions. These will be read out to you at your bail hearing and a copy should be provided to you when you leave custody. Your lawyer should also send you a copy and will be able to answer questions you have. The police and the court will also have a copy of your conditions.

Even if you have been on bail before, you must check your bail conditions carefully as they probably will be different to the last time you were on bail. You should speak to your lawyer as soon as possible after your bail application to make sure you understand the conditions.

How long will I be on bail for?

This depends on your case. Usually, you will remain on bail until your case is finished (when the charges are withdrawn, you plead guilty, or are found guilty/not guilty).

How can I change my bail conditions?

Your bail conditions are a court order – this means to change them, or have conditions taken away, you must apply to the court. This means a magistrate or judge will be the person who decides whether you can change your bail conditions.

If you want to change your bail conditions, you should speak to a lawyer immediately. They can help you send the paperwork to the court and let the police know you would like a change.

Often it takes several days to get a court date. It may be faster if the police are planning to say yes to your change. You should ask your lawyer to speak to the police about the change to see if they will agree or disagree with what you are asking for.

What happens if I can’t follow my bail conditions?

You can be charged with another offense every time you don’t do what you are meant to do on bail. You can also have your bail ‘revoked’, which means you may return to custody. This is why it is very important to let your lawyer know if you are having any issues while you are on bail.

If you don’t have a lawyer but would like legal advice, please contact either the legal aid commission of the state and territory you are in, or the Aboriginal legal service if you identify as Aboriginal and/or Torres Strait Islander.

If you have any further questions, please send them to us and we will endeavour to answer them! Note we cannot provide individualised legal advice, only information.

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A place for news and education, expression and hope.

Help us get About Time off the ground. All donations are tax deductible and will be vital in providing an essential resource for people in prison and their loved ones.

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