The two most common ways are via a ‘notice to appear’ or arrest and processing through a watch-house. The police have a discretion as to which manner they elect and will ordinarily have regard to the circumstances and seriousness of the offence. If the person is arrested and processed through the watch-house the senior officer at the watch-house has the power to grant the person ‘watch-house’ bail. If watch-house bail is not granted then the person must be brought before the court to seek bail from a Magistrate.
When deciding whether or not to grant bail the court considers a whole range of factors, such as the person’s personal circumstances, the nature of the offence and the strength of the evidence against the person. The court must then decide, amongst other things, whether or not the person is an unacceptable risk of committing further offences, failing to appear in court or interfering with witnesses. After balancing all of these factors the court can either refuse bail or grant bail with conditions that are designed to ameliorate any risks of further offending or failure to appear.
If a person is refused bail before the Magistrates Court, or has been charged with an offence that carries mandatory life imprisonment as a maximum penalty (for example, murder) then they can apply to the Supreme Court for bail.
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