American artist Eminem rapped about only getting ‘one shot, one opportunity’ in the movie ‘8 Mile,’ and these days getting bail is a lot like that.
You can’t afford a poor bail application in the local court, because it will likely be your only chance.
For the uninitiated, bail simply means being released from custody, whether it is by police or a court. You are released, with conditions or restrictions sometimes placed on your release, whilst you await your matter to be heard and finalised by the court
Most people charged in NSW are given bail by police, and receive a court attendance notice. Some however, depending on their previous criminal record or the nature of the charges they face, will not automatically be released by the police, and will be forced to ask a court to grant them bail.
I remember how a much respected and funny university lecturer of mine used to tell stories about how ‘back in the day,’ before video link court appearances by inmates, prisoners would apply for bail ‘just for something to do, to have a trip to the court, and some time away from the clink’, often irrespective of their prospects. Additionally inmates may have been of the mindset that if one Magistrate would not grant bail, maybe another would be willing to on a fresh application, so why not give it a go.
Some prisoners would even apply for bail, as it might afford them a shot at an escape!
Those times are long gone.
Revisions to the Bail Act mean that if you have applied in the local court for bail, and have been refused, then unless you can show a change in circumstances, you cannot reapply to the local court a second time. An appeal to the Supreme Court on the magistrates decision to refuse bail is their only option.
It’s often hard to show a change of circumstances when you are locked up!
Many, many people, a number of whom will later be found innocent of any wrong doing, or guilty of crimes that do not result in a custodial penalty, are currently on remand, sitting in gaol, waiting for court dates. They are bail refused.
The politics of that aside, any person charged and refused bail by police needs to think very carefully.
Not too long ago I got a call from the cells of a police station to go and see a young bloke charged with assault and breach of an ADVO.
I explained to him that he only had one shot at bail in the local court, and that if he wanted to avoid been locked up till his matter was finalised, he needed to think carefully of how and when his bail application should be made.
He could instruct us to make it that day, or alternatively, he could wait in custody for a couple of days or a week, to allow us time to more thoroughly prepare his bail application by gathering material that would address the major criteria that the magistrate needed to consider when pondering the issue of granting the client bail. This additional preparation, which is most often unable to be undertaken by a client’s lawyer at the police cells on the day of their arrest, may be the difference between a successful and an unsuccessful bail application.
Ultimately we applied for and were granted bail on the day of the client’s arrest, but like with much of the process in criminal law, there are a number of options we need to advise our clients about, and always a myriad of circumstances to consider.
People arrested and charged by police who are not granted bail right away should think carefully about all their options and seek appropriate advice, or, guilty or not, they risk months in gaol on remand.