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Bail And Bond In Criminal Law

Table of Contents

The Bail System

What Is The Purpose Of Bail?

Bail is a process whereby an accused person is released from custody or remand pending the resolution or finalization of their criminal matters. The individual is released on the understanding that they must appear in court as directed and that they must strictly comply with and follow any directions or conditions imposed by the court.

Bail allows the accused person their freedom until their innocence or guilt is proven however it is based on several factors. For one, community risk needs to be assessed to determine whether it is appropriate for bail to be granted to the accused however this will be discussed further below.

What Is Involved In Applying For Bail?

When an application for bail is made, there needs to be a heavy reliance on what conditions you are willing to agree to in order to mitigate the risk to society. The arguments you will need to be sure to include in your application will be relevant to the offence committed specifically.

For example, if you have committed an offence relating to drug misuse, you will need to consider making arguments targeted towards your involvement in rehabilitation programs, drug counselling, testing, etc. You need to demonstrate to the court that you take the matter seriously and you understand that your actions pose a risk to the wider community. The more insight you can show into your behavior and its effects the better.

Additionally, practical factors such as living arrangements, work arrangements and family commitments should be explore din your application. The court needs to know how remand may affect your life and the lives of anyone dependent upon you when they consider your bail.

Can Bail Be Granted Without An Application?

The short answer is yes, bail can be granted without an application however it is dependent on the type of offending and the court. Many magistrates court matters such as traffic offences, some violence offences, minor drug offences, etc when heard will be automatically bailed between court dates.

In circumstances where an individual has been incarcerated either upon arrest or following their court date, an application will need to be made for bail to be granted. It is not possible for bail to be granted without an application in these circumstances as the risk to the community has already been assessed as high.


What Is The Purpose Of Bond?

Bond is used as a monetary incentive for good behaviour. For some, the most effective method of ensuring good and lawful behaviour is to provide a financial motivation. If bail money is paid to achieve freedom and the individual is aware that the money will go to waste if they re-offend or break rules then they are statistically more likely to be on their best behaviour. This can be for a multitude of reasons but usually, it is because money is one of the most powerful motivators. This is particularly true for recent times because money is tighter for so many.

What Is The Bail Bond Process?

Bail bond is a relatively easy process. The court will set bail (usually a cash bail) at a particular amount and it is up to the defendant to work out how that amount will be paid. Bail money will vary depending on the severity of the offending. For example, bail amounts will be set lower for a minor assault charge than it would be for a drug trafficking charge. The Bail Act can provide specific amounts for certain offending however a lot will be left to judicial discretion. The required bail will need to be paid prior to any release from custody

Bail is not a right and the court can refuse bail based on any perceived risk they consider is to great. Refusing bail is a means of protecting the community. There are things one can do however before the next court date to increase their chances of bail being granted. This can include rehabilitative courses, counselling, etc. Unfortunately, an individual’s criminal history may be working against them when it comes to bail and there are limited means of altering the courts perception. To use a colloquial term, the proof is in the pudding.

What Is A Property Bond?

A property bond in criminal cases, allows a defendant to secure a bond against their property instead of paying a cash bond. Property bonds can only be used if the bond amount required is less than or equal to the amount of equity the defendant holds in the property. This will mean that the defendant pays the bond but doesn’t need to pay money they do not have.

property bond may not cover the total bail but may only cover a portion of it while the remaining portion is paid in cash bonds. For example, a bail bondsman may only be required for a portion of the money as the defendant can pay a portion themselves or secure a portion against property. By reducing the liability against the bail bondsman, the chances of them assisting are greater.

What Is A Surety Bond?

A surety bond refers to a written agreement which either guarantee’s payment, compliance or performance of a particular act. In a criminal law scenario, if a defendant cannot afford the bail money required then a surety bond will be paid by a bail bond company who is liable for the money in the event the defendant breaches bail.

This may be as simple as not attending court when required or may relate to further criminal offending. The bail bond company or bail bondsman will need to have particular confidence that the individual will hold up their end of the bargain so that they do not become liable to pay the money,

A surety does not always have to be a bail bond company however and can be any individual who is willing to cover the amount of the bail. This may be a family member, friend, etc. Whoever the individual, they develop an invested interest in the defendant’s good behaviour.

Tips and Tricks

If you are looking to apply for bail, you need to be prepared for the court to require you to post bail following your court hearing. You and your lawyer if you have one, will likely already have considered whether a bail bondsman is required and started to consider how the funds for the cash bail will be paid following the next court date.

If you are looking at engaging a bail bondsmen or bail bond agent, you should have already approached and discussed options so that everything can be presented to the court at once.

You and your lawyer should also have considered the bail conditions you can reasonably agree to and have a list ready to go. Your lawyer would have had you consider whether a written promise is in order so you can be prepared with this for the day.

As you can likely tell from the above, the most important tip to take away is this – Legal Advice obtained early is best! Whether it is a serious offence or not, legal advice could be the different between a good or bad outcome. It may even just be as simple as knowing what the maximum penalty is or perhaps even avoiding that penalty throughout your criminal proceedings.

Making A Bail Application

Making a bail application is not easy task and the utmost care should be taken with what information is presented to the court. Firstly, bail should not be applied for without basis. It will do nothing but waste the courts time and sour their perception of you. Whilst it is certainly an option and a courtesy extended to any defendant, some applications are best left unmade.

Secondly, a bail application, should be realistic. The arguments made in both your written application and at your bail hearing should be both logical and reasonable for the circumstances. The court is interested in you reasonable ability to be released on bail and wants to know the exact factors. As a criminal defendant, the likelihood is already high for re-offending and bail applications must address how and why you consider you can mitigate that risk.

This brings us to the third major consideration, what conditions you can and will reasonably be able to adhere to during bail. For example, if you are intending to find work but it will likely be nighttime work, do not make arguments that you can adhere to a nighttime curfew condition. Alternatively, you may provide a particular address to the court which you cannot reasonable live at. If a defendant fails to adhere to a condition then they will almost definitely be returned to jail for the remainder of the time till their hearing.

If you are fortunate enough to be granted bail then you must ensure you attend all court appearances (unless expressly advised you do not need to) to show both respect and accountability to the court. Ultimately, the judge determines your fate so that is who you need to make the best impression to. The court system is not set for convenience but justice.


Unacceptable risk refers to the specific risk an individual may pose to either a singular person, group of persons or the wider community. That risk then needs to be weighed to determine whether it is of such a level that would make it unacceptable to release the individual back within society.

Bail conditions are designed to protect the community from criminal offending by censoring behavior. An individual who has been found guilty of prior criminal offending has a higher chance of re-offending and causing harm to the community.

Bail conditions restrict behavior until rehabilitation and trust can be built. For example, there may be a restraint on drinking due to significant offending involving alcohol consumption. Rehabilitation can occur through periods of non drinking and drug and alcohol counselling.

Yes, an excessive bail amount can be set by either the Magistrate's or Supreme Court in criminal cases. Often, an excessive amount will be reflective of the type of offending committed and the severity of that offending. For example, depending on the circumstances, a defendant who has been accused of murder have their bail set so they can be released. The bail amount in this instance however will likely be significant as murder is a serious charge. The money paid therefore acts as a surety against the defendant fleeing. Of course, their bail conditions will also be strict.

A bail undertaking refers to an undertaking given to the court that bail conditions will be complied with. This is a serious matter and the court considers undertakings to be a written promise which should not be broken. A bail undertaking also gives the court an opportunity to re-enforce the seriousness of the matter to the defendant.

A bail bondsman may be required to attend court to provide verbal confirmation of their ability to assist the defendant with the bail amount. The bond agent themselves may need to sign paperwork which is kept on record. The process is different between countries so it is important to understand the Australian, state specific requirements as opposed to other countries.


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