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Applying for Bail in the Northern Territory

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

A person arrested in the Northern Territory may be given a summons to come to court or, if the circumstances of the offence make it more serious, a bail determination may be made. An authorised police officer will first look at whether bail should be granted. That decision can be reviewed by a justice or a magistrate at court. If bail is granted conditions for release from custody will be set. These conditions will always include appearing in court at a later date and there may also be others, including residence or conduct conditions. A sum of money (a guarantor or surety) may have to be promised or deposited. When the defendant signs the bail undertaking acknowledging that they will comply with the conditions they can be released.

There is no limit to how many times bail applications can be made to a court but the court may refuse to hear the application if they think it is vexatious or frivolous. If bail is refused by the court, the maximum adjournment is for 15 days.

The Supreme Court can review the conditions set by the court, including a refusal to grant bail. A magistrate or justice cannot consider bail for a matter in the Supreme Court. The law on bail in the Northern Territory is governed by the Bail Act. If the offence is a commonwealth crime there are further rules set out in the Crimes Act 1914 (Cth) which must be considered.

When arrested, a police officer will first look at whether bail should be granted.

Criteria for granting bail

In deciding whether to grant bail the police, justice or magistrate must consider whether it is likely the person will appear in court. In making their decision they consider certain things which are set out in the Bail Act. Firstly, they will consider person’s background and community ties as shown by their living arrangements, their employment, family and previous criminal record including any failures to appear in court. The circumstances of the offence, including the strength of the police case, how serious it is and the likely penalty, will be looked at. They can hear evidence which may show the likelihood that the person will or will not come to court. The interests of the person charged will also be considered. This includes the conditions they would be held in and how long they are likely to be held, and their need to be free for any lawful purpose (work, family, preparing their legal case etc).

If a person is intoxicated, injured, drug affected or is in danger of injury or in need of protection they may remain in custody. The likelihood that the person could commit an offence, including a breach of the bail, if released must be considered. They must consider the community’s interests. This includes any risk that the person may, if allowed bail, interfere with evidence, witnesses, jurors, victims or their relatives, or that they may affect the welfare or safety of a person. The police must tell the person considering bail if the victim is concerned that the release of the person could lead to a risk to them and their reasons for concern.

Presumption against bail

For many offences (particularly minor offences) there will be a presumption that bail should be granted. But for other offences bail should not be granted unless the police or court is satisfied that it should not be refused. For these offences bail cannot be dispensed with. This includes certain drug offences, terrorism, murder, treason, serious animal cruelty offences, offences of being associated with serious criminal activity or illegal organisations, offences involving threats against  persons involved in criminal investigations or judicial proceedings or against public officers,  some serious sexual or violence offences, some offences committed while on bail or following previous convictions for serious offences or while subject to a sentencing order, or if the person is charged with breaching an Apprehended Domestic Violence Order (in some circumstances). Despite this a person may still be released on bail if they are assessed to be suitable for an approved rehabilitation program and that is a condition of their bail.

Commonwealth offences

Commonwealth offences are offences under commonwealth rather than state law. On the whole, they are dealt with the same as for the state offences. In addition to the state requirements special considerations regarding customary law and cultural practice must also be considered. For some commonwealth offences bail cannot be granted unless the police or court considers that the circumstances of the case are so exceptional that bail should be granted. These include some treason and terrorism offences, certain drug importation or exportation matters, and offences where a person’s reckless or deliberate behaviour did or could have caused a death. If bail is granted in these matters, the Commonwealth Director of Public Prosecutions can appeal against the grant and the bail is stayed. This means that the person is not be able to be released on the bail while the stay lasts. This is a maximum of 3 days.

Breach of bail

 It is an offence to breach any of the conditions of the bail, or to fail to come to court. The police can arrest the person and bring them to court. The court will decide whether to continue or revoke bail. The court must revoke the bail if the person was charged with a serious violence offence and released on bail despite the presumption against bail. Once revoked, a fresh application for bail can be made. The maximum penalty for breaching a bail is $29,800.00 and/or a gaol sentence of 2 years, but the penalty imposed for the breach cannot be more than the maximum penalty for the original offence. It is a defence to the charge if the person has a reasonable excuse for the breach.

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