It is easy to mix up legal terms, especially when they appear to have similar meanings. However, knowing the difference between legal terms is helpful.
The circumstances involved in an arrest are deeply distressing, and understanding legal terms helps avoid confusion and ensures you will be aware of the arrest process. In addition to understanding the process, you also benefit from being informed of your options.
What is Bail?
After an arrest, the defendant will appear before a judge, who will then decide the terms of the defendant’s bail order.
In some cases, a defendant will need to show cause. Showing cause explains to the court why keeping you in jail is unjustified.
Typically, you will need to show cause if you are involved in a serious offence such as:
- Violent offences
- Sexual offences
- Offences involving firearms or other weapons
Additionally, if you are charged with a crime whilst out on bail for a previous offence, you must show cause. Often, getting bail is difficult if you need to show cause.
Should a judge decide that a defendant is a threat to the public or a significant flight risk, bail can be denied. If this happens, the defendant will stay in police custody until their court hearing.
What is a Personal Undertaking?
When an accused person is granted bail, they must enter into a bail undertaking. The undertaking is a legally binding written promise to fulfil all conditions attached to the bail conditions and attend court on the scheduled date and time.
If the court agrees to bail, several conditions can be attached to the bail.
Specifications Related to Bail
Cash Bail Conditions
These conditions are familiar to many as they are common in most legal systems worldwide. Terms of cash bail include a specific amount of money paid to ensure the defendant will not flee and will attend subsequent court dates.
If the defendant has the cash necessary to satisfy the judge’s order, they simply pay this to the court, and the money can be returned after all the conditions of the bail order are met and the case is resolved.
Technically, paying cash to meet the terms of a bail order is known as a secured bond or a cash bond. However, the process of paying the court money to secure your release is known as bail.
A surety is a person who makes a legal agreement with the State and agrees to surrender a set amount of money if the accused person fails to appear in court as required.
The surety condition is the monetary amount that a surety agrees to pay if the defendant does not appear at the next scheduled court date. The required amount does NOT need to be paid before the accused is released. However, if the accused does not attend court as required, the surety must pay the surety condition.
The surety must show the court that they possess cash or assets equal to the surety condition. If the surety amount is $20,000, the surety must bring documentation proving that they have assets that equal $20,000.
Typically, surety conditions are greater for more severe offences. And a person considering taking on this role must be aware of the consequences they will incur if the defendant fails to appear in court.
Protective Bail Conditions
Courts will apply protective bail conditions if the accused threatens the well-being of victims, complainants, or witnesses. Protective bail may be imposed if the accused is likely to try interfering with witness testimony or intimidate victims, complainants, or witnesses.
A protective bail condition names a person(s) and/or a place(s) the accused person must stay away from and not contact. A defendant may be required to have no contact with an ex-girlfriend and must stay away from her residence and place of employment.
A vital point regarding protective bail is that it is a criminal offence to breach these conditions.
Residential Bail Conditions
The court may attach a residential bail condition to the terms of a defendant’s bail. The accused may need to stay at their residences or another person’s residence, such as a partner, sibling, or parent. If this condition is imposed, that person will need to give consent.
Residential bail conditions differ from home detention bail conditions. Home detention requires the accused to reside at and remain within a particular residential address 24/7.
Curfew Bail Conditions
The court may find instituting a curfew bail condition proper to prevent an opportunity for further offences. It is most commonly seen as a bail condition for juveniles or if the offence occurred in a public place at night. Often a curfew condition is given in conjunction with the stipulation that police may make unannounced visits to the residence.
Schedule 2 Bail Conditions
Schedule 2 bail conditions are brought into consideration when someone accused of a serious offence as defined by the Bail Act of 1982 is out on bail and commits another serious offence. In this situation, the accused is known as a Schedule 2 Offender. A complete list of serious offences, as defined by the Bail Act of 1982, can be found in
- The Criminal Code section 279-section 444
- The Criminal Organisations Control Act 2012, sections 99-107
- The Misuse of Drugs Act 1981 sections 6, 7, 14, 33(1), 33(2)
- The Restraining Orders Act 1997, sections 61 and 86
- The Road Traffic Act 1974 section 59
- The Bush Fires Act 1954, section 32
A Schedule 2 Offender must show “exceptional circumstances” to be released on bail. While the Bail Act does not define exceptional circumstances, the defendant’s legal representatives must show compelling reasons to prove the existence of such circumstances.
If you are arrested, you need to take action quickly to help remedy your situation. Your best option is to contact us at WN Legal. Our experienced team of criminal lawyers will guide you through the process of what you need to do next and the ins and outs of bail. Furthermore, we will work to achieve the best possible outcome for your case. We have spent years helping defendants in numerous types of criminal trials. Let us put our experience to work for you.