The decision to grant bail can be considered by a police officer, this is called “police bail”. If the bail cannot be considered by the arresting officer, the accused has the right to be brought before an authorised police officer who can grant bail, or if the accused is not granted bail by the police, he must be brought to a Magistrate’s court as soon as is reasonably practicable. If the court grants bail it is called “court bail”. What is “reasonably practicable” in a particular case is determined by the particular circumstances of that situation.
Section 7 provides that this duty to consider bail exists whether the accused makes an application for bail, or not.
Upon arrest you (the accused) must be given an “Information given by Accused” form, which you can fill in to provide information for the purposes of having bail considered. There is no obligation on you to complete the form, or supply any information, but failure to provide information may lead to a delay in the decision. Section 9 provides for the bail decision to be deferred to obtain more information for the purposes of making a decision regarding bail. The decision may be delayed for a maximum of 30 days but you must still be taken to court as soon as is practicable.
If you were arrested under a warrant, you must be taken to either a justice, or before the court, which issued the warrant, as soon as is practicable to consider bail.
If the police officer is authorised to consider bail, the officer will consider the following in making the bail decision:
If the police decide to grant bail, you may have to sign a Bail Undertaking to appear in court on the specified date and time and to comply with certain conditions on you being released on bail.
You must be given a copy of the Bail Undertaking and a form explaining the conditions and your obligations. It must also set out the consequences of not complying with the conditions.
If bail is not considered, or not granted, you need to be brought before a court as soon as is practicable.
The court has a discretion to grant bail, with or without certain conditions, or to dispense with bail, or refuse bail. In exercising its discretion the court must consider the factors set out in Schedule 1, Part C of the Bail Act 1982. The importance of each factor will be weighed and balanced against the circumstances of the case. The court must also consider any other factors relevant to your case before the court.
The factors (as set out in the Bail Act) to be considered by the court are:
In considering the abovementioned, the court must also consider:
Bail should not be a punishment; it is aimed at securing your presence at court to finalise the matter.
In many cases in the Magistrates Court, bail is not opposed. It is important to ascertain early on what the prosecution’s attitude is towards bail. If the bail application is opposed you must address the following when making your application:
The outcome of your bail application is very important to you. It is important to seek legal advice and consider obtaining a lawyer to assist you with the process.
If you are not happy with a bail refusal by the authorised police officer, a justice or a magistrate, you can apply to a judge to grant bail. Once you’ve made such an application to a judge, you cannot make another if you are not happy with the outcome, unless:
There is a change in the circumstances, or new facts are discovered, or you failed to present your case properly in the first application; or
You can also make an application to the Supreme Court for a fresh application of bail. An application to the Supreme Court is in essence, an opportunity for a fresh hearing of the bail application before a Justice of the Supreme Court. Any application to the Supreme Court for a fresh bail hearing will need to be set out by an affidavit in support setting out the basis for the application for bail. The Court also requires that the accused person’s charges and transcripts from previous bail application be annexed to the affidavit in support.
Ask a lawyer to assist you to make an application to a judge. This might be the final opportunity to be released on bail in your matter.
Murder cases require the accused to show exceptional circumstances for granting bail. However the right to apply for bail remains.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.