A strong bail application usually begins well before the lawyer stands up in court.

When a person has been remanded in custody, there is understandably pressure to get them back before a Court as quickly as possible.

But simply making a bail application is not the objective. The objective is to make the strongest bail application reasonably available.

At Emma Turnbull Lawyers, one of the most important parts of preparing for bail is identifying the weaknesses in the proposed release plan before the prosecution or the Court identifies them.

Bail applications are about the person, not just the charges

Bail law in Victoria is governed principally by the Bail Act 1977 (Vic).

The applicable legal test depends upon the offences charged and the circumstances of the accused person.

The Court may also need to consider whether releasing the accused would create an unacceptable risk that they would:

• endanger another person’s safety or welfare
• commit an offence while on bail
• interfere with witnesses or obstruct the course of justice
• fail to attend court

Understanding the applicable test is only the beginning.

What can we actually put before the Court?

Building the bail plan.

Before making an application, we may ask:

• Where will the accused live?
• Who lives there?
• Is that address actually available?
• Is there an intervention order preventing the accused from returning home?
• Do they have employment?
• Are there drug, alcohol or mental-health issues?
• Could treatment be arranged?
• Who will support them in the community?
• Are there bail conditions that could address the risks alleged by the prosecution?
• And critically, what evidence do we have to support the plan?

Accommodation

A stable address can be critical but an address needs to be more than somewhere the accused would like to live. We consider whether it is actually available and appropriate.

This is especially important in cases involving family violence allegations or an intervention order. The proposed bail conditions and any intervention order need to work together.

Employment and community ties

Employment may demonstrate stability and connection to the community. Where appropriate, evidence confirming that employment remains available can be considerably more useful than simply asserting that the accused expects to return to work.

Family relationships, caring responsibilities and other community connections may also be relevant.

Treatment and rehabilitation

Where offending is alleged to be connected with drugs, alcohol, mental illness or other underlying issues, simply promising to address those problems may not be enough.

We may investigate whether treatment can actually be arranged.

In an appropriate case, this might include psychological or psychiatric treatment, drug and alcohol counselling or residential rehabilitation.

Evidence can make the difference

There is an important distinction between saying “He can get treatment” and showing “this treatment provider has accepted him and an appointment has been arranged.”

Likewise, “she can probably live with her mother” is different from establishing that the proposed accommodation is confirmed and workable.

Depending upon the application, supporting material might include medical evidence, treatment-provider letters, rehabilitation information, employment material, accommodation evidence and information from family or support people.

What about the strength of the prosecution case?

A bail application is not a trial, however, that does not mean the underlying criminal case should be ignored.

The strength of the prosecution case may be relevant. We therefore consider the actual allegations and available evidence.

There may be factual disputes. There may be weaknesses in identification or witness evidence. There may be admissibility issues, forensic issues or an available defence.

Where appropriate, those matters can form part of the bail application.

Can bail conditions solve the problem?

Another important part of preparing bail is identifying precisely why the prosecution says the accused should remain in custody.

Once we understand the alleged risk, we can consider whether appropriately tailored conditions could address it.

Depending upon the case, conditions can relate to residence, reporting, curfews, contact with particular people, attendance at particular places, travel, passports, drugs or alcohol, or participation in treatment.

The objective should not simply be to propose as many conditions as possible.

It is to develop a workable release plan that responds to the actual concerns in the case.

Preparation matters

When liberty is at stake, a bail application should not be an afterthought.

Our lawyers prepare bail applications by considering both the criminal case and the circumstances of the individual accused.

We ask why bail is opposed, what evidence can be obtained, what weaknesses exist in the prosecution case, what conditions might address the identified risks and what can be improved before the application is made.

Because a good bail application does more than ask the Court to release someone.

It gives the Court a properly developed and workable alternative to continued detention.

Emma Turnbull Lawyers – Specialist Criminal Defence Lawyers & Intervention Order Lawyers
Melbourne | Appearing throughout Victoria

This article contains general information only and does not constitute legal advice. Bail applications depend upon the charges, applicable legislation and individual circumstances.

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