Why bail is such an important consideration upon arrest
If you’re needing advice or assistance with legal matters (including understanding your legal obligations), Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.
In January 2021, a mother and daughter from Greenacre in Sydney were both arrested and charged with importing a commercial quantity of drugs – an offence which carries as a maximum penalty life imprisonment. Connie Chong and Melanie Lim ordered a shipment of what they believed to be ginger tea from China. But the shipment aroused the suspicions of the Australian Border Force and a preliminary test of the tea returned a positive result for drugs. The police then raided their Greenacre home where they found more drugs and the pair were arrested and charged.
Although they were arrested in January 2021, the substance imported from China wasn’t sent off for a formal test until April 2021 and then 3 months later in July 2021, the formal test revealed that the ginger tea contained no trace of drugs. Therefore, both women served five months behind bars before their charges were dropped.
It’s not known whether or not these women had applied for bail after they were charged, but if they had then it would’ve obviously been refused as they remained behind bars. This matter is a perfect example of why bail is such an important consideration once a person is arrested and charged with a criminal offence.
How is a defendant ordered to appear before a court?
When a person is charged with a criminal offence, there are a number of ways the person can be brought to appear before the courts. There are, generally speaking, three ways for this to occur:
- 1. By way of a ‘Notice to Appear’. This is a small piece of paper directing the person to attend court on some future date and is generally issued for relatively minor offences where the police do not believe that the person is a danger to the community.
2. By way of arrest. This is where the person is remanded in custody (for example, at a watch-house) to be physically brought to court by the police to appear before a Magistrate. This is what often occurs where the police believe that the person presents as a risk to the community (such as a risk of committing further offences, or a risk of failing to attend court) and is usually what occurs where the defendant has been charged with more serious offences.
3. By summons. This is a somewhat outdated and unusual manner, which is similar to a ‘Notice to Appear’ but with minor differences.
If the person’s appearance is via the second method above, the defendant will ordinarily be in a position where they have to apply for bail in order to be released.
What is bail?
Very simply, bail is where a person who has been charged with a criminal offence is released into the community pending the finalisation of their criminal charges.
When a person has been charged with a criminal offence it can sometimes take a very long time until the matter is finalised. To give you some idea, most simple charges can be dealt with immediately upon their first appearance in court if the person is pleading guilty. However, for serious charges where the evidence is complex, both to gather and to consider, there can sometimes be significant delays.
Take for example a simple possession of drugs matter. If the police allege that the possession was for any reason other than personal usage, the matter must proceed to the Supreme Court. This means that the drugs must be analysed, which will currently take approximately 4-6 months. That means that the matter won’t be finalised until about 9-12 months from the date of charge – and that’s if the defendant is pleading guilty. If the defendant pleads not guilty, it can take between 18-24 months until the matter is finalised at trial.
The issue of bail must be considered and approached very carefully early on in the proceedings as failing to secure bail may mean that the defendant will remain in custody until their matter is finalised – and as demonstrated above, that could be two years or more.
What is considered at a bail application?
A court considering the issue of bail will look at a number of factors, such as the seriousness of the charges, the strength of the evidence against the person and the person’s personal circumstances (for example, whether they have employment or strong ties to the community). They will weigh all of these factors up and then consider whether, if the person is released on bail, they are an unacceptable risk of committing further offences, interfering with witnesses or fleeing the jurisdiction.
Take for example a man who has lived in Australia his whole life, owns his own home where he resides with his wife of 20 years and five children and has worked at the same job for the last 10 years. He is a man who could easily demonstrate that he is not a risk of disappearing as he has such strong ties to the community. However, if the charge against him is extremely serious, such as drug trafficking, where he is facing a potential sentence of 25 years imprisonment, the court might decide that the prospect of such a lengthy prison term might lead to him being tempted to flee.
In such a situation, a good defence lawyer will argue for conditions to be imposed on the defendant that would bring the risk of bail down to an acceptable level – such as the surrendering of the defendant’s passport, daily reporting to a police station or the provision of a ‘surety’, which is an amount of property by way of cash or equity.
Bail is an extremely important step in the criminal justice process and needs to be treated with great care and preparation. Bail not being properly considered and the wrong decision being made could lead to terrible consequences – such as what occurred with the two women in Sydney mentioned earlier.
If you’re needing advice or assistance with legal matters (including understanding your legal obligations), Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.
