More than any other aspect of criminal law practice, bail is the most important.  Being detained risks your employment, it strains family relationships and adds to the difficulties of properly preparing for your case. 

Unfortunately, most people simply leave a bail application in the hands of the duty lawyer who appears each day.

But that lawyer doesn’t have the time to prepare detailed submissions or chase up exhibits that might assist your application in succeeding.

At best, they will have a few minutes to take instructions and the same when the matter is ventilated in court.  They don’t have one matter, they will be appearing for many, and the practical reality of that is that they won’t be able to prepare a thorough bail application.

The consequence to you may be that you remain behind bars.

If you’ve found yourself in this situation, contact Michael McMillan today on (07) 5619 6860 or 0409 273 430.

In addition to getting proper instructions and properly preparing, the lawyer appearing on a bail application must be very well-versed on the applicable law.

Even very superior courts have recognised that bail can be impeded by a court misapplying the law in bail applications, even something as fundamental as the precept that bail is not punishment.

In Edwards v R (No. 2) [2022] NSWSC 1344 it was said:

“..it is not legitimate to refuse bail to an applicant …..because it can be concluded that they have been charged with serious crimes that have caused great suffering and the case is strong or that it is otherwise appropriate that an accused person start serving their sentence immediately.  This fundamental precept is sometimes lost especially when bail applications are determined so close to an event over which the grief is still raw.”

Show Cause Charges

Being charged with certain offences in both New South Wales or Queensland pose greater difficulties in getting bail than others.  These are called ‘show cause’ offences, and being charged with one of those means that you have to show why your continued detention in prison is not justified.

Recently, domestic violence offences have been included in this category in Queensland.

Given the prevalence of this type of offending, there has been a serious increase in those forced to ‘show cause’, and consequently those refused bail in that State.

A competent criminal lawyer will, in attempting to show cause, be demonstrating why his client shouldn’t be kept in prison, not why his client would like to avoid being detained in prison.

This exercise will necessarily involve critiquing the police evidence to show its weaknesses.

Recently in the Supreme Court Bail Application of [name redacted] in which I appeared, the Applicant was charged with extortion and serious drug offences, amongst other charges.  After reading the brief, it was immediately apparent to me that the Crown case did not make any sense.  Given that the Applicant was in a ‘show cause’ situation, my approach was to demonstrate that cause was shown in the implausibility of the Crown case occurring in the manner alleged.  As can be seen from reading the abovementioned transcript, the Supreme Court judge hearing it agreed with me, and my client was admitted to bail.

In addition to that, formulating conditions the applicant must abide by restricting any chance of further offending whilst on bail.

The nature of these conditions is limited to a large degree only by the creativity of an experienced criminal lawyer.

A recent example of a case like this in which I was involved was the case of The Crown v [name redacted].

The facts of this case involved allegations my client had been an accessory after the fact of murder and had attempted to persuade some Crown witnesses to alter the evidence they were to give against him.

Limiting his ability to communicate with those witnesses was key to obtaining bail.

So, a condition was developed where he was permitted to acquire and use a mobile phone, but its use was subject to monitoring by police.

And, as can be seen from the above transcript, this factor was a significant factor in convincing the court to admit him to bail.

Another more recent example showing cause was necessary was the case of Police v [name redacted].

In this case, the applicant was charged with offences of stalking and contravening an existing domestic violence order.

These types of charges meant he had to show cause why he should be permitted bail.  To me, the facts required him to be kept objectively as far away from the alleged victim as possible, and not be permitted to return to her hometown unless doing so was permitted by the Queensland Police Service.

These two factors (aggregated with others) successfully proved to be a powerful incentive in encouraging the court to accept that he had show cause.

This is a fairly obvious example of the many I could disclose of how careful consideration of what exactly was required to get bail saw the application succeed.

If you require any assistance on a bail application, I am only too willing to assist you.

I am always available to discuss the best approach to take in any bail application.

Contact Michael for Legal Advice

If you’ve found yourself in this situation, contact Michael McMillan today on (07) 5619 6860 or 0409 273 430.

Frequently Asked Questions