Bail Applications 2018-06-28T14:54:51+00:00

Bail Applications

If the defendant is not in a ‘show cause’ situation the burden is on the Police to prove that the defendant should not be granted bail. The burden of proof shifts should the defendant be in a ‘show cause’ situation.

Should the Police believe that there is an unacceptable risk that a defendant may:

  1. Fail to appear and surrender into custody; or
  2. Whilst on bail:
    1. Commit an offence;
    2. Endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or
    3. Interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
  3. That the defendant should remain in custody for the defendant’s own protection.

In determining whether a defendant is an unacceptable risk of any of the above the Police must have regard to all matters appearing to be relevant and in particular the following considerations as appear to be relevant:

  • the nature and seriousness of the offence;
  • the character, antecedents, associations, home environment, employment and background of the defendant;
  • the history of any previous grants of bail to the defendant;
  • the strength of the evidence against the defendant;
  • if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—

(i) the defendant’s relationship to the defendant’s community; or

(ii) any cultural considerations; or

(iii) any considerations relating to programs and services in which the community justice group participates;

Should the Police deem a defendant to be an unacceptable risk of the above matters then they may object to the defendant receiving bail. Should the Police object to a defendant receiving bail they must bring the defendant before the Magistrates Court as soon as practicable to allow the opportunity to argue the point of Bail before a Magistrate.

If the defendant is not in a ‘show cause’ situation the burden is on the Police to prove that the defendant should not be granted bail. The burden of proof shifts should the defendant be in a ‘show cause’ situation.

There are numerous situations that may place a defendant in a ‘show cause’ situation including:

  1. Being charged with a serious offence whilst on bail for a serious offence;
  2. If it alleged the defendant used, or threatened to use, a weapon when committing an offence;
  3. Being charged with an offence against the Bail Act (eg failure to appear); or
  4. An offence punishable by a maximum penalty of at least 7 years imprisonment if the offence is also a domestic violence offence.

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