24 Mar 2018

Aside from those dealing with very simple criminal matters, the majority of people traversing their way through the criminal justice system will need to deal with the issue of bail. Our senior criminal lawyer, Siobhan Nims highlights some important tips to bear in mind when dealing with bail in this month’s e-checklist.

  1. Remember you only have one shot at bail – or, more accurately, once bail is refused, you cannot apply again for bail again on the same charges unless there is a change in your circumstances. For that reason you should make every effort in a bail application to put your best foot forward. That might mean engaging the right representation, and gathering all the necessary information and material in support of you getting bail BEFORE proceeding with a bail application – even if an adjournment in custody is required first.
  2. Do not under any circumstances breach protective bail conditions – protective bail conditions can be thought of as ‘extra-special’ bail conditions. Common protective bail conditions might include things like not communicating with the complainant or witnesses in a matter. Breach of protective bail conditions can be a further criminal charge in its own right. What’s more, if you’re charged with breaching protective bail conditions while you are still on bail, you will have to show the Court that you have ‘exceptional circumstances’ to even be able to ask for bail again. Which brings us to…
  3. Exceptional* circumstances – When people are on bail already for what the law says is a ‘serious offence’, and they then commit another ‘serious offence’, they have to show the Court they have exceptional circumstances. The exceptional circumstances are required just to be able to ask the Court for bail. Even if you have exceptional circumstances, the Court may still decide not to grant bail.

    *‘Exceptional’ means just that – there needs to be very special reasons established to ask for bail. Bear in mind that the fact someone has a job is not exceptional, nor is the fact that a person has kids or a family.

Some examples of exceptional circumstances might include having a terminal illness, being the sole carer for someone else with a very serious illness or being the only available carer for high needs children. ‘Exceptional circumstances’ can be made up of one set of circumstances (e.g. personal illness) or a combination of circumstances (e.g. personal illness, being the sole carer of a dependent family member and high needs children, for example).

  1. If you are on bail with a surety, check whether your surety automatically extends or whether your surety will have to come along to court each appearance to re-sign the bail. Remember that if the person going surety for you is needed to re-sign at each court appearance, you can be detained in lock up until they are able to sign. If your surety doesn’t automatically extend each court appearance, make sure you bring the person who is your surety along each time.
  2. If you can’t make the court date you are bailed to, let the court and your lawyer know ASAP. Usually the Magistrate or Judge will issue an arrest warrant if you are on bail and don’t turn up to court when you are meant to. An arrest warrant allows police to pick you up and keep you in lock up or prison until they can bring you before a court again. If you let the court and your lawyer know that you can’t make it, then sometimes a bail extension notice can be issued. That allows you to come back to court on a different day instead, without an arrest warrant being issued. If you do miss court, get and keep evidence as to why you missed court, for example, a medical certificate if you were sick. Don’t forget that if there is an arrest warrant because you missed court, you MUST hand yourself into police as soon as you are physically able to.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office at reception@hhg.com.au or call us on 1800 609 945.

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