Arrested and Refused Bail



In situations where you have been arrested and refused bail by the police, you will often be put before the court at the earliest opportunity as you are being held in custody. Often on this appearance, you can make a bail application. Due to ever changing and strict bail laws you should seek legal advice and have a properly prepared bail application, for if rejected you may not have a right to make another application. Depending on the facts of the alleged offences and your personal matters relevant to a bail application your lawyer may suggest you not making a bail application on the first appearance and may want time to get as much relevant matters addressed before making a bail application to the court.

Section 19 provides that a bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns, that there is an unacceptable risk that if released from custody the applicant will:

• fail to appear at any proceedings for the offence, or
• commit a serious offence, or
• endanger the safety of victims, individuals or the community, or  interfere with witnesses or evidence.

What is a bail concern? 
Section 17 provides that a bail concern is a concern that an applicant, if released from custody will: fail to appear at any proceedings for the offence, or
commit a serious offence, or
endanger the safety of victims, individuals or the community, or
interfere with witnesses or evidence.
How does the court assess whether there is a bail concern? 
Section 18(1) provides an exhaustive list of the only matters that can be considered in assessing whether an applicant is a bail concern. A summary of the relevant matters follows:
Person’s background, including criminal history, circumstances and community ties
Nature and seriousness of the offence
Strength prosecution case
Whether you have a history of violence
Whether you have committed a prior serious offence while on bail
Whether you have a history of compliance or non-compliance bail, AVO, parole, good behaviour bonds
Whether you have criminal associations
The likely time spent in custody
The likelihood of a custodial penalty
If on appeal, whether reasonably arguable prospects of success
Vulnerability or needs due to ATSI, cognitive or mental health impairment
Need to prepare case & legal advice
Need for liberty for any lawful reason
Conduct towards victim or family member after the offence
Views of victim or family member to the extent relevant to endangering safety victim, individual, community
Bail conditions that could be imposed to address bail concerns
What happens if your application for bail is unsuccessful? 
Section 74 of the Bail Act 2013 provides that a court must refuse to hear multiple release or detention applications unless: the accused person was not previously represented, there is new information not presented before, there has been a relevant change of circumstances or the accused is a child whose prior application was on the first appearance. Please note that the section applies to multiple applications before a court only, not an authorised justice. • If this hurdle is overcome, section 73 poses a further difficulty as the court may still refuse to hear a further application if it is without substance or has no reasonable prospects of success.



Contact Chris Kalpage from Kalpage & Co Solicitors below or call 0418 211 074

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