During a bail application in a Local Court the prosecutor will provide the court with the facts as presented by the police which outline the alleged offence. The prosecutor will also present the court with your criminal record if you have one and with any other documents they consider to be relevant to the case. The Magistrate of the Local Court will also be asked to read any documents provided by your lawyer.
Your lawyer will make submissions on your behalf to the magistrate of the court as to why you should be granted bail. The submissions will include information on your ties with the community, your residential history, employment history and any other information that may be considered relevant to the criteria set out in Section 32 of the Bail Act. Your lawyer will also let the court know, if applicable, if there is someone willing to deposit cash or security to secure your bail. Usually this person will not be required to give evidence.
The Magistrate will ask the Prosecutor if they think bail should be granted in your case. It is important to note however that even if the prosecutor agrees to your bail it may not necessarily be granted by the magistrate. The final decision on whether to grant bail is in the hands of the court and they decide whether or not to grant bail with reference to the Bail Act and with consideration of all the material brought to them by the prosecution and your lawyer.
If appropriate your lawyer may also point out any problems with the prosecution’s case against you during the bail application proceedings.
Supreme Court and District Court bail applications
These bail hearings are far more formal than local court bail applications. In most cases the accused person doesn’t appear in person in the Court but remains in custody and appears via a video link.
Your solicitor and/or a barrister will appear on your behalf and the police will be represented by the DPP or a crown prosecutor. A judge (Supreme or District) will decide whether bail should be granted.
The bail application begins when your lawyer mentions your matter and indicates that bail is being applied for.
The judge will ask the crown what the prosecution’s attitude to bail is. The prosecutor will either consent to bail being granted or oppose it. If the prosecutor consents to bail this will help your application but it does not guarantee that the judge will grant bail.
The DPP or Crown Prosecutor will tender documents about your case to the judge with a view to establishing its merit. These documents usually include key statements from the prosecution brief. Your lawyer will negotiate with the DPP or Crown Prosecutor as to what statements and documents are given to the judge.
If there is any evidence in dispute, the judge may permit your lawyer to cross examine the police officer in charge to ascertain the strength of the Crown’s case.
During the bail application proceedings you may be called upon to give evidence by your lawyer. You lawyer can also call on other people to give evidence; these people may include anyone who is depositing cash bail on your behalf, your employer or your spouse.
Your lawyer will make submissions as to why bail should be granted. These submissions will address the criteria set out in Section 32 of the Bail Act.
The judge may deliver a determination on the day or adjourn the matter to consider the application.
If you need to apply for bail, or are seeking further information on a Criminal or Traffic legal matter, call North Shore Criminal Law on (02) 9955 2298 or our 24 hour Emergency Service on 0400 44 64 24.