It is important to remember that even though the police have decided there is enough evidence to charge the defendant, they are still presumed innocent until they are proven to be guilty.
This is either by pleading guilty or after the prosecution has proven they are guilty at a trial.
Presumption of bail
In most cases, there is a presumption in favour of bail.
This means that when the police and the court are considering whether to give a defendant bail, they are required by the law to start from the position that the defendant is entitled to be released on bail.
Some offences have a presumption against bail (refer to s 10A of the Bail Act 1985). For those offences, the defendant can still get bail but they have to convince the court that there are special circumstances.
The law also requires the police or court to consider if the alleged victim feels that they need to be protected from the defendant when considering an application for release on bail.
Home detention bail
Home detention bail is a form of bail where the person is required to live at a specified address and stay there at all times. They are allowed to leave for:
- paid employment
- medical or dental treatment
- to avoid a serious risk of death or injury
- a purpose approved by a community corrections officer.
Often, but not always, a person on home detention bail will be required to wear an electronic monitoring device (‘anklet’).
Not being granted bail
The police and the court can decide not to grant bail for different reasons. This can include:
- the seriousness of the offence
- the likelihood that if they are released they will abscond or re-offend
- there is a chance they will interfere with evidence or witnesses.
If a defendant is not given bail, they will stay in prison while the matter continues through the court process. This is called being ‘remanded in custody’.
They can re-apply for bail at any stage in the court proceedings – but there usually needs to be a change in circumstances for the court to re-consider bail.