At Josh Smith Legal, we have a wealth of experience in all types of bail applications.
We have won bail applications in some of the most serious and difficult cases, including for commercial drug trafficking cases, large drug importations, serious assault cases and much more; as well as in less serious cases.
Josh Smith Legal also has a renowned reputation with numerous barristers, including the more highly regarded and skilled Queen’s Counsels for preparing bail applications meticulously.
Whenever someone is remanded, it can cause heartache not only to them, but also to their family and friends.
But please don’t lose hope – your loved one can be back home sooner than you think! You just need to contact Josh Smith Legal so that we can get the ball rolling and focus on getting your loved one out of custody and back home as soon as possible.
What is ‘bail’?
Bail is essentially a promise by someone who has been charged with a criminal offence to attend court on a future date.
There are often special conditions which someone on bail has to follow, such as:
- An obligation to reside at a fixed address.
- An obligation to report to a particular police station several days a week.
- A curfew – ie you cannot leave your home between 9pm and 6am.
When would you apply for bail?
In some cases, people who are charged with a criminal offence will be remanded into custody. In these circumstances, some people apply to a court for bail in the hope that they will be released from custody on bail and return to the community.
How do I get bail?
There are different tests in Victoria which you have to overcome to get bail, depending on your criminal charges and personal circumstances. The tests are complex and can be difficult to overcome.
The tests are:
Unacceptable risk test:
The law states that people charged with a crime are entitled to bail, unless they pose an ‘unacceptable risk’ to the community on bail. There are various ways in which someone can be deemed an ‘unacceptable risk’, such as a belief that they will:
- Fail to attend court when required.
- Commit another crime whilst on bail.
- Interfere or threaten witnesses in their case.
Show compelling reasons test:
The compelling reasons test involves a 2-step process:
- Firstly, the bail Applicant has to demonstrate that they have ‘compelling reasons’ which justify their release on bail. This part of the test involves an assessment of the Applicant’s “surrounding circumstances”, which can include:
- The type, nature and seriousness of the crime they are alleged to have committed.
- The Applicant’s previous criminal record.
- Whether the Applicant has been on bail previously for different offending, and if so whether they complied with bail then.
- If the Applicant can show that they have ‘compelling reasons’, then they need to overcome the ‘unacceptable risk test’ described above. However, it is the Prosecution/Police who need to prove that the Applicant is an unacceptable risk. If the Applicant can overcome this 2-step test, then they will be granted bail.
Exceptional circumstances test:
The ‘exceptional circumstances test’ is a harder test than the ‘compelling reasons test’. It is the bail test applied for the most serious offences, including:
- Commercial drug trafficking.
- Aggravated carjacking.
The ‘exceptional circumstances test’ is a 2-step process:
- The applicant first has to demonstrate that they have ‘exceptional circumstances’ which justify their release on bail. The law does not define what are ‘exceptional circumstances’, although some of the more common circumstances are:
- Delay to trial.
- Mental and physical health.
- Surety – a 3rd party who agrees to pay a certain amount of money if the Applicant is granted bail but breaches it.
- If the Applicant successfully demonstrates ‘exceptional circumstances’, then the ‘unacceptable risk test’ is applied.