To understand the purpose of bail, you start by understanding the cliché “innocent until proven guilty”. Whilst we don’t use the term “innocent” in our Courts, it is a tenet of our justice system that as a general rule until you are guilty (that is either found guilty, or enter a plea of guilty), and then sentenced, you are at liberty.
The police initially decide if you are to given bail. If the Police refuse to grant bail and decide to keep you in the cells, the Court will then decide if you get bail.
The mental hurdle which may be difficult to jump, is that regardless of your circumstances, you are not to being punished at this stage. You can be caught “with a smoking gun”, your “hand in the lolly jar” or however you describe it, but you are not to be punished at this stage.
You are only punished when the magistrate sentences you after finding you guilty, or after you enter a plea of guilty.
There are over 5,000 prisoners spending an average of nearly seven months each in prison that have not been found guilty, but the courts consider them too much of a risk of non-appearance, or for the protection of the victim or the community, they are in custody “on remand”. These are a simplification of the matters considered by the police or courts, in deciding whether to grant bail to an accused person.
The whole idea being that you should not be held in the cells or at the prison merely because the police are sure that you committed an offence. You have not yet entered a plea of guilty, or been found guilty by a magistrate or jury so at this stage, you are not deserving of punishment.
There are factors that are taken into account on deciding to release an accused person on bail. The Bail Act is one of the more poorly drafted pieces of legislation, but can be simplified as follows.
The factors can be grouped into three main categories. The likelihood that you will appear in Court when required, the protection of the victim and the community and lastly your interests.
Depending on the seriousness of the charges, there are different thresholds to being granted bail. For some offences, there is a presumption FOR bail. In these cases, you should be able to get out, unless the Police put together a very strong argument as to why you shouldn’t. For more serious offences, there is a presumption AGAINST bail, which places the job of convincing the magistrate, upon the accused person. For some offences the is no presumption for or against bail being granted.
The police may grant bail at this early stage, and give you a court attendance notice. If the police look at the criteria and don’t grant bail, you may spend a night in jail until the next opportunity for a bail application in front of a Magistrate or Registrar. Sometimes prisoners spend months in jail awaiting a hearing, before being found guilty of anything. This is referred to as “on remand”.
Bail can be granted, subject to conditions. To stay away from an alleged victim, live at a certain address, report to a police station, non- association orders or offer property as security, or surrender your passport.
The security (mainly cash) can be deposited by an “acceptable person”. An acceptable person is someone well known to you with no significant criminal record. The money deposited as a surety will be forfeited if you fail to turn up at Court.
Next week we will look at the Courtroom of the Local Court, and what will happen at your first Court appearance.
If you have any questions you would like answered either confidentially or via this medium, please email us at firstname.lastname@example.org
This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.