What is Bail? The Bail Application Process, Bail and Remand

by Dribbin & Brown Criminal Lawyers

Bail is the process whereby a person who has been arrested and charged is released from police custody back into the community whilst awaiting the next court hearing.

If bail is refused, then the arrested person is remanded in custody pending the next court hearing.

In the Magistrates’ Court it can be many months between arrest and hearing. Even longer in the higher courts. So the issue of bail is critical from the perspective of the Accused.

In deciding whether to grant bail, the police or the court must balance competing considerations. In many cases the decision can be very difficult, as it can be seen as an assessment of future risk.

Bail as a conditional freedom

If bail is granted, the Accused is released from custody, but their release is subject to conditions. The conditions are imposed to alleviate any perceived potential risks once the Accused has been released.

Common bail conditions include:

Residing at a specified address;
Periodic reporting to the police station;
Not being able to leave the state and/or country; and
Not being able to associate with witnesses or co-accused.

Implications of denial of bail

If bail is refused, the Accused is remanded in custody. However, being held in custody whilst awaiting the next court date can have serious implications. Just as the courts regard the use of prison as a ‘last resort’ in sentencing, remanding a defendant in custody should also be regarded as a last resort.

The key case law in relation to bail

Re Asmar [2005] VSC 487 – Relationship between show cause and unacceptable risk as a one step process
DPP v Harika [2001] VSC 237 – Meaning of unacceptable risk, show cause and overlap
DPP v Ghiller [2002] VSC 435  - Meaning of unacceptable risk, show cause
DPP v Mokbel (No.3) [2002] VSC 393 – Delay as exceptional circumstance
R v Nezif [2005] VSC 17 – combination of factors can ‘show cause’
DPP v Tong (2000) 117 A Crim 169; [2000] VSC 451 – no definition of exceptional circumstances
R v Sanghera [1983] 2 VR 130  - hearsay evidence admissible in bail hearing
Re Jack Zoudi [2006] VSCA 298  - bail pending appeal
Stephan Zade Abbott (1997) 97 A Crim R 19 – Combination of factors can constitute exceptional circumstances
R v Light [1954] VLR 152 – Common law presumption of bail

When bail can be granted

Bail can be granted at any stage of the criminal process from the point of arrest through to the trial, sentence and final appeal.

Contact Dribbin & Brown if you need an experienced Bail Application Lawyer.

Click here to read the full article,  What is Bail?  The Bail Application Process, Bail and remand.



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