Bail: Criminal lawyers for freedom

Criminal lawyers for bail: Fifteen steps to get you out of jail

Our criminal lawyers are experts at obtaining bail for our clients.

If you have been arrested and charged with a criminal offence, it is crucial to obtain bail, whether you intend to plead guilty or not guilty.

A person accused of a crime has a fundamental right to liberty because they are innocent until proven guilty, not the other way around. The deprivation of liberty is the ultimate sanction a court can impose because it removes you from society and takes away your human right to freedom.

Below are the fifteen steps to obtain bail when charged with a crime.

Step one: Identify why bail is important to your case

There are many reasons why your criminal lawyer needs to obtain bail for you, and identifying them is crucial in preparing a bail application. Reasons that it is important you are granted bail can include:

• If you are refused bail, you will be disadvantaged in defending the charges against you because your access to lawyers will be more limited.
• If you are refused bail, you will have less access to the police evidence against you, especially electronic evidence such as video and audio, voluminous documents, or sensitive information that other inmates cannot see.
• If you are refused bail, you will have less access to evidence that could help your defence, such as witnesses who need to be located or spoken to, electronic evidence like email, messages, and social media, and videos or photographs.
• If you are refused bail, it harms your family and loved ones because they need your support in their lives, whether financially, emotionally, or physically.
• If you are refused bail, your life can be devastated by the loss of employment and financial security, including payment of mortgages or rent.
• If you are refused bail, your physical and mental health will be affected.

Step two: Get the right lawyer

Our criminal lawyers are experts at obtaining bail for our clients in the Local, District, and Supreme Courts. We understand how to put together a bail application to maximise your chances of being released from jail, no matter how serious the crime. Our criminal lawyers carefully craft oral and written submissions that detail the law and submit why you should be granted bail. Our submissions are designed to convey to the court what makes your case unique and forcefully put your case forward.

We have obtained bail for clients charged with crimes such as murder and assaults, including domestic violence, large-scale drug supplies and importations, serious sex offences alleged against both adults and young people, firearms and dishonesty offences like fraud, proceeds of crime, and break and enter, as well as forn repeat traffic offenders charged with disqualified or dangerous acts of driving.

Many clients whose bail applications we appeared in have taken the time to write reviews about their experience with us.

Read what our clients have to say about us here.

Step three: Know the law 

The law has created different tests for granting bail. The test for bail is determined by the seriousness of the crime and personal factors, such as whether you are on parole or bail when the new offence is alleged.

There are two main types of bail applications:

1. The unacceptable risk of a bail concern test.
2. The show cause and the unacceptable risk of a bail concern test.

The type of bail application significantly influences how it is prepared and should be kept in mind at all times.

Step four: Identify the bail concerns

If only the unacceptable risk test applies, the court will consider whether there is a bail concern that a person will fail to appear at court, commit a serious offence on bail, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence. The Bail Act 2013 specifies what matters the court can consider in deciding whether the bail concerns have been addressed. A good criminal lawyer can quickly identify which bail concerns a court will have and craft a bail application that highlights the matters in your favour and addresses the less favourable ones.

Matters relevant to bail concerns that will need to be highlighted and addressed include your background (including circumstances and community ties); criminal history (especially violent offending and domestic violence offences) and criminal associations; whether you have previously committed offences on bail and have a history of compliance or non-compliance with court orders; the nature and seriousness of the offence; the strength of the prosecution case,  the length of time you are likely to spend in custody if bail is refused and the likelihood of a custodial sentence being imposed if you are convicted of the offence.

The court must also consider whether bail conditions can ameliorate the risk of a bail concern, which is discussed at step 13.  

Start five: Identify factors to show cause

If the show cause test applies, you must also argue why your detention in jail is not justified. Cause can be shown by a single powerful factor or a combination of factors. The more serious the crime, the higher the threshold for showing cause. Your criminal lawyer must be familiar with the factors that commonly show cause and bring those to the court’s attention, or be able to extract something special or unusual about your case that shows cause when others charged in similar circumstances do not.

Factors that our criminal lawyers often use to show cause are weaknesses in the prosecution’s case and the likelihood that you will be found not guilty; the time you will spend in custody awaiting trial; the need to be free to prepare your case, especially where the evidence against you is voluminous; the fact that you would not necessarily be sentenced to imprisonment if you were found or pleaded guilty; your need to be free to maintain employment and care for your family; youth, having no criminal record, or it being your first time in jail; medical conditions that cannot be adequately treated in prison and need for access to mental health services in the community; and residential rehabilitation for drug and alcohol abuse.

Start six: Time your bail application correctly to prepare properly

Bail applications can occur at different times during criminal proceedings, but there are limits on how many times you can apply for bail, and you must listen to your criminal lawyer, who will know the right time to make the application. The amount of preparation will vary depending on when the bail application occurs and how difficult your lawyer expects the bail application to be. Tougher bail applications require more preparation to maximise the chance of success.

The amount of preparation will also depend on when the bail application occurs. For example, a person needs to be brought before a court as soon as possible after arrest so that they can apply for bail. In that situation, a criminal lawyer will have limited access to their client, and the preparation may consist of speaking with them in custody and obtaining references from family members, employers, and others hastily.

For a second bail application in the same court, there needs to be a change of circumstances or important new information for the court to hear the bail application. In this situation, the court will usually list the bail application within 2 weeks of being lodged. This allows for much more preparation, including references, affidavits, corroborating documents such as medical records and employment contracts, and treatment proposals (e.g., with psychologists). For the Supreme Court, the wait for a bail application is 4-8 weeks. This creates the opportunity for extensive preparation that can include (in addition to the material referred to previously) the tendering of defence evidence or evidence in the prosecution case favourable to you, and the obtainment of residential rehabilitation.

Start seven: Work together with family and loved ones

The ironic truth is that the most significant impediment to getting bail is you, because you are in jail with minimal access to your support network. The ten-minute phone calls to five people that jails allow you are often insufficient for the optimum bail application to be prepared. For this reason, it is critically important that you, your criminal lawyer, family, and loved ones work together closely to compensate for that disadvantage. Your family and loved ones can provide powerful affidavits and references that can sway a court with their observations about your character, what you do in the community, and the devastating impact of your absence. They can also contact others, on your behalf, for assistance with the bail application, including friends, employers, and health providers, to whom you and your criminal lawyer do not otherwise have access. Another way they can assist is by obtaining documents that you and your criminal lawyer do not have access to, such as medical records, bank statements, contracts, emails, messages, and social media.

Step eight: Get into treatment 

Where there are mental health, alcohol, or drug considerations, the bail plan should include a treatment proposal that you can engage in if granted bail. Our criminal lawyers can refer you to psychiatrists, psychologists, counsellors, or a residential rehabilitation centre, as well as programs such as Alcoholics or Narcotics Anonymous, MERIT, SMART Recovery, and Positive Lifestyles, which the court places a significant weight on.

Step nine: Bail conditions

The court must consider the bail conditions that could reasonably be imposed to address any bail concerns in deciding whether to grant you bail. The proposed bail conditions are designed to address any bail concerns the court has in releasing you. This can include depositing money or property with the court to ensure someone attends court, or agreeing to forfeit money or property you retain possession of.

A bail plan may involve limited or no conditions to allow you to continue your life largely uninterrupted while the criminal proceedings are on foot. Alternatively, more serious offences may involve substantial restrictions on your liberty, such as house arrest/detention, where you can only leave your home for exceptions like employment. Where there are mental health, alcohol, or drug considerations, the bail application should emphasise the treatment you will receive if granted bail.

Common bail conditions include:

• Depositing or agreeing to forfeit money or property to ensure a person attends court.
• Residing at one specific address.
• Curfews or ‘house arrest’ prohibit a person from leaving their home except at certain times or in limited circumstances, such as employment.
• Reporting to police stations on specified days.
• Abstinence from alcohol and drugs.
• Requirements to engage in mental health treatment.
• Requirements to engage in treatment for drugs and alcohol, including residential rehabilitation where necessary.
• Being restricted from contacting people, such as witnesses and co-accused.
• Using one or no mobile phone.
• Restrictions on visiting specified places, locations and entire suburbs.
• Agreements not to enter international or domestic departure points.
• Surrender of passports.

Step ten: Highlight weaknesses in the prosecution’s case

When applying for bail, particularly for show cause applications, a weak prosecution case can cause the court to conclude that your continued detention is unjustified. If the prosecution’s case is weak, your criminal lawyer can argue that if you are refused bail, you will spend a long period in jail for a case that might not even result in your being found guilty.

An experienced criminal lawyer can pick apart a facts sheet to expose weaknesses in the prosecution’s case. They will review a brief of evidence to find the evidence that will cause the case against you to crumble, or tender evidence in possession of the defence that will give the court considerable concern about you remaining in custody. A weak prosecution case can be a powerful tool in obtaining bail, especially when combined with other factors such as delays, the potential penalty, and your personal circumstances.

Step eleven: References 

Character references for court are an extremely important part of a bail application. References present a golden opportunity for you to show the court your good character in the words of the people who know you best. However, it is essential to remember that a reference for a bail application is entirely different from a reference for sentencing proceedings. Some of the topics that should be covered in a reference for bail include:

• The referees should outline personal observations about you, your character, and their shared background with you.
• The referees should talk about what you do in the community (work, study, family, etc.) and your ties to the community.
• The referees should state why they believe you should be granted bail, e.g., employment, family, residential rehabilitation or other treatment.
• The referees should state what they believe will happen in your life if you are not granted bail and remain in custody, e.g., decline of mental health, loss of employment, loss of accommodation, etc.
• The referees should state what they believe will happen in their own lives and those of others (e.g., children, parents, employees, etc.) if you are not granted bail.
• The referees should state why they believe you will abide by your bail conditions.

The above is not a checklist, and what should be in a reference for each person differs. There are many topics to cover, and our criminal lawyers will assist you in obtaining references and help your referees know what to write.

Step twelve: Affidavits and giving evidence

For some bail applications, more may be needed than references. In those cases, we take sworn/affirmed affidavits from clients and loved ones and/or prepare them to give evidence in court. Affidavits are evidence equivalent to giving evidence orally in court, but in written form. If you swear or affirm an affidavit, the prosecution is entitled to cross-examine you about its contents in the same way as if you had given that evidence in the witness box. Giving evidence in court is one of the most powerful ways to persuade a Magistrate or Judge to grant you bail. It allows them to hear directly from you or your loved ones, and the prosecution to challenge what is said under cross-examination.

Step thirteen: Corroborating documents

Our criminal lawyers obtain corroborating documents to confirm what has been said in other evidence, such as affidavits and references. Corroborating documents are simple but powerful tools to convince the court that the consequences of refusing you bail are real. For example, if you say you will lose your job, we will obtain a letter from your employer saying so. Similarly, a bank or mortgage statement can show the devastating financial consequences of being refused bail.

If you say you have a history of mental illness or physical ailments, we will obtain your medical records. These records can include letters from treating psychologists and psychiatrists, consultation notes, hospital discharge papers, specialist letters, and GP summaries recording your medical history and medications. We can also obtain entire medical files from the community or Justice Health.

Step fourteen: Psychological and psychiatric reports

Our criminal lawyers have a network of psychologists and psychiatrists we use for sentencing reports. The reports we obtain contain our client’s background, a diagnosis of their mental health conditions, and an opinion on whether that mental health condition contributed to the commission of the crime. We do this because there is a large body of law relating to mental health, including that it reduces moral culpability and the need to denounce the crime or for someone to be made an example of, lessens the need to punish someone, and makes prison more onerous than for someone who does not have a mental health condition.

Step fifteen: Choose the right barrister

In some cases, a barrister will be needed or desired by the client. It is essential to choose the right barrister because they vary significantly in quality. You should select your barrister in close consultation with your solicitor because they are best placed to know who will be best suited for your bail application. There is a broad spectrum of junior and senior counsel, and your criminal lawyer can provide you with a list of barristers to choose from to ensure you have the right person for your case.

Why choose the Australian Criminal Law Group