The granting of bail following an arrest
What is bail?
When a person has been charged with a criminal offence the police officer can generally take one of two courses. If the charge is relatively minor, then the police officer can issue what is known as a ‘Notice to appear’. This is simply a small piece of paper advising the person that they have to appear in Court at a particular time and date (for example, the Brisbane Magistrates Court or Richlands Magistrates Court). If the charge is more serious, then the police officer can transport the person to a police ‘watch house’ to appear before a Magistrate in a Magistrates Court. The court that the person will need to appear in, whether by a Notice to appear or being processed through a watch house, will generally be determined by a number of factors. Some of these include: the jurisdiction that the criminal offence is alleged to have been committed in; the jurisdiction in which the person was arrested; or the jurisdiction in which a watch house is able to accommodate the defendant. The watch house attached to the Brisbane Magistrates Court and Richlands Magistrates Court are larger than those attached to many other courts across Brisbane so it is not unusual to have defendants processed through these jurisdictions, even if there is no other connection to Brisbane or Richlands.
Once the person appears before a Magistrate, the question of bail must be considered and it is critical that a person engage the services of an experienced criminal defence lawyer early on in this process. Because matters can sometimes take a long time to be finalised, a defendant has the right to apply for bail. Being granted bail is being released from prison until the matter reaches conclusion, whether that be by sentence or trial. That means that the person does not have to remain in prison while the criminal charge proceeds and is finalised through the court system.
In granting bail, the Magistrate weighs up a number of factors to decide whether or not the person is likely to fail to return to court, commit another offence or interfere with witnesses, including:
(1) the seriousness of the offence
(2) the strength of the evidence against the person
(3) the characteristics of the defendant (for example, their criminal history, how long the person has been in the country for, whether or not they have stable employment or whether or not they have a family)
The granting of bail with conditions
The court may grant bail on certain conditions that will minimise the risk of the person breaching their bail. Common conditions are:
(1) the defendant will agree to report to a police station a number of times per week
(2) the defendant surrenders their passport, meaning that they are not able to flee to another country by plane
(3) the defendant agrees not to have any contact with the other defendants or witnesses
(4) usually for cases involving children charged with offences committed at night, a curfew, meaning that the defendant isn’t allowed to leave their home at night
(5) another person pays a surety on their behalf
A surety is the payment of a sum of money by another person on the defendant’s behalf as a promise to the court that the defendant will appear in court when and as required. A surety is not always essential for bail, but will usually be necessary if the matter involves a high risk person.
A surety must be over the age of 18 and have no criminal history. Surety can be paid either by way of cash or by equity. Equity, say for example a house, is the value of the house minus the amount owing on the loan. For example, if a house is worth $500,000, and the mortgage is $400,000, then there is $100,000 equity available. If surety were being paid by equity, then no cash needs to actually be paid to the court. The person paying the surety simply has to produce a valuation for the home and a statement from the bank and then sign material confirming that they will pay the surety amount if the defendant breaches their bail. These are all documents that can be procured by any experienced criminal lawyer.
The more risk associated with the granting of bail, the more the surety amount will usually have to be. Common surety amounts are up to $10,000, although we have had clients placed on $300,000, and even $1,000,000 surety.
The refusal of bail
If a Magistrate forms the opinion that the risk of the person being granted bail is too high, they can refuse that person bail. The person is not able to apply for bail again before the Magistrates Court unless they can demonstrate that a material change of circumstances occurs. An example of a change of circumstance would be where the police originally appear to have strong evidence against a person, but after the evidence is disclosed it is discovered that the police in fact only have weak evidence against a person.
If a person is refused bail before a Magistrates Court, they then have the right to apply for bail before a higher court, known as the Supreme Court. The process involved in a Supreme Court bail application is much more complex and is conducted largely on sworn statements, known as affidavits, of the defendant and supporting people, such as family members. Because it is possible that a person might have to spend months and sometimes years in custody pending the finalisation of their criminal matter it is critical to engage an experienced criminal defence lawyer very early on, and if at all possible prior to even being charged if there is a suspicion that criminal charges are pending.