It is very important to know one’s rights. Just because a person got arrested does not mean they are at the mercy of the authorities and the judicial system. If what was committed is a non-capital offense or a minor infraction, the defendant has the right to post bail. Also, the police can give out police bail if they cannot carry the accused before a judge immediately. This arises when the defendant is arrested on the weekend or the judge for that particular case or territory is elsewhere.
Granting a police bail still a prerogative of the arresting officers. Still, the police usually release the defendant if the offense is minor by just letting the latter sign a promise in writing that he / she will appear before the court on schedule. However, when the police will not grant the accused the police bail (maybe the accused’s release may pose danger to the community like being arrested for assault or robbery in the criminal case side; fraud or bouncing checks in the civil case side), thus the defendant is going to wait to be taken to the court. By then, the accused can apply to the court to grant his / her bail.
Being granted the police bail, does not mean the accuse will not be put to jail again. He / she will have to apply to the court for surety jail bonds so he / she can continue to be released out of jail. When the police do not recommend an opposition for the defendant’s bail, the registrar will just grant the bail outright. There is no need for the judge to opine on the bail application.
If the police vehemently oppose to grant the defendant bail, that is when the judge comes in. The judge himself / herself will decide if the accused is going to be allowed to post bail. Also in cases where the defendant is just merely appearing before the court and the police opposes bail, the judge will again decide on his / her own volition whether or not a bail shall be granted.
If the defendant has no lawyer to arrange bail for him / her, he / she can enlist the Duty Solicitor to do it for him / her. Tapping the Duty Solicitor to apply for bail is free of charge. The Duty Solicitor will ask the judge for bail. Defendants who committed minor infractions are entitled to court bail as a right. These are the cases that are entitle to court bail as of right:
- Offenses that are not punishable by imprisonment
- Offenses with maximum punishment of less than three years of imprisonment provided that this offense is not an assault on a minor or violation of a protection order under the Domestic Violence Act of 1995
- Offense under the CRIMES ACT 1961
In other cases, the granting of bail highly depends on a number of factors like being a flight risk, possibility of witness interference and evidence tampering, and the defendant’s historical record of criminal activity.