M2 - Learner Manual

Bail is the release from custody of a person charged with an offence on the basis that they sign an undertaking to turn up to court to answer the charge which they face.

Bail may be granted unconditionally or on conditions that the accused person agrees to certain orders which the police or court thinks are necessary to protect the community and ensure the person’s attendance at court.

The police may grant or refuse bail at the station following a person being charged. If the person is refused bail by the police, the person may make a bail application to the court.

Local and District Court decisions can be reviewed by the Supreme Court. In NSW a Court is to refuse to hear a second bail application where a previous application has been made unless there are grounds for a further application for bail (this does not apply if the accused was unrepresented when the first bail application was made).

The bail determination is a very important step in the criminal process. The refusal of bail has a significant impact upon many issues including a person’s ability to conduct their defence, conviction rates, and the size of remand populations.[1]

Sentencing outcomes may be more limited for a person who is sentenced whilst on remand. For example, the person refused bail does not have the opportunity to engage in rehabilitation programs within the community to demonstrate their prospects of rehabilitation when facing sentence. A person who is on remand also has more limited access to drug and alcohol programs than sentenced prisoners which creates further disparities between those on bail and those on remand by virtue of being refused bail.

Each State and Territory has its own legislation relating to bail. Each jurisdiction has differences in relation to the legal tests and procedures, however, there are general themes in relation to the main considerations a Magistrate or Judge considers when making a bail determination.

These include:

·      the likelihood of the accused appearing at Court

·      the protection and safety of victims and the community

the likelihood of further offences and the accused’s interests