Criminal Law


There are several factors required to be proven for the Court to grant bail in a criminal offence.

Bail Application Lawyers Essendon and Melbourne CBD

There are several factors required to be proven for the Court to grant bail in a criminal offence. Bail is governed by the Bail Act 1977, however changes to this Act have been introduced in recent years and operate as Bail Amendment (Stage 1) Act 2017 and Bail Amendment (Stage 2) Act 2017. The changes to the Bail Act now provide higher threshold for bail to be granted.

When deciding whether to grant bail, the bail decision maker will always consider the seriousness of the offence, the criminal history of the accused and whether the accused was on bail or parole at the time of the offence.

Bail will be refused for offences such as murder, treason, aggravated home invasion and aggravated carjacking. There is also a presumption against bail for other offences such as rape, kidnapping, intentionally causing injury and many more.

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If I have been arrested for an offence, what will happen?

If you have been arrested and held by police for an offence, you are deemed to be in custody.

With less serious offences, the police may release you on bail and you will be instructed to appear before the Court at a later date. The main condition of bail in less serious offences is that you will attend the Court date to be tried for the offence.

However, for more serious criminal offences, you may be held in custody and brought before a Court to decide whether bail should be granted or refused. The police will arrange for you to attend before a bail justice as soon as possible and you may present your bail application.

It is crucial to obtain legal advice as soon as possible for your case. This is in your best interest for you to receive the best outcome for your case, especially if you have been refused bail by police and are required to submit a bail application to the Court.

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What will happen next if I have been granted bail by police?

If you have been released from custody by police, you will be required to attend the Court date provided to proceed with the matter; this is the main condition of your bail.

Often, police will impose additional conditions on your bail such as staying away from certain locations or venues, living at a particular residential address, and any other conditions deemed necessary.

For other very minor offences, police will often order a small monetary deposit be made as security for paying any penalty imposed for the offence.

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What is happens in a bail application if I am refused bail by police?

If the police have not granted you bail after your arrest, you will be remanded in custody and directed to a bail justice to present a bail application. It is strongly advised to have a legal representative present your bail application as they will be familiar with the rules, requirements, defences, and etiquette in front of the bail justice.

It will need to be proven to the bail justice that you will not be an unacceptable risk if you were to be granted bail. However, a person must be refused bail if the bail decision maker is satisfied that there is a risk of:

The bail justice’s decision will be based on the nature of the offence, your character, your past criminal history, and other circumstances. The burden will lie on the prosecution to give evidence to the bail justice as to why bail should not be granted.

Depending on the category of your offence, you will need to show either exceptional circumstances to be granted bail or compelling reasons to be granted bail. Your legal representative will present the argument according to the offence you have been charged.

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What happens in I am granted bail?

If bail is granted, bail decision makers must impose conditions on bail that will reduce the likelihood that the accused will endanger the safety of others, commit an offence while on bail, obstruct the course of justice, or fail to comply with the conditions of bail.

You will be obligated to adhere to the terms of your bail. If you breach any conditions of your bail, you will be charged for such unless reasonable excuse for your breach is proven. Conditions of your bail may include reporting to a police station regularly, staying away from certain locations or venues, and surrendering your passport. The bail decision maker may also impose a condition that you deposit a sum of money, which will act as a surety.

Additionally, if you are granted bail you must enter into a written undertaking to surrender into custody. This means you will be under a duty to attend Court for the hearing or trial, and should you fail to attend, you will have committed an offence with a maximum penalty of up to 12 months’ imprisonment.

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What happens if I am refused bail?

If the bail justice does not grant bail, you will remain in custody until your trial. A fresh bail application may be made in certain circumstances if new facts arise or if you were self-represented during your bail application.