A person can apply for bail after they have been convicted and sentenced to a term of imprisonment. However, whether they will be granted bail will depend on a number of matters, including which court they have been convicted in, the offence they have been convicted of and the ‘threshold’ of bail they are required to meet in order to be granted bail.
There are essentially three different “thresholds” of bail: (1) a person is entitled to bail; (2) a person is required to show compelling reasons as to why they should be granted bail; and (3) a person is required to show exceptional circumstances as to why they should be granted bail. In each instance, the court will also assess whether a person will pose an unacceptable risk of re-offending, endangering the public, interfering with witnesses or failing to attend court if granted bail.
As stated at the outset the type of offence a person has been convicted of and the Court in which they have been convicted will also have an impact on their prospects of bail. For example, a person who is sentenced to a term of imprisonment in the Magistrates’ Court will quite often be granted bail, whereas a person who is sentenced to a term of imprisonment in the County or Supreme Court will almost never be granted bail.
This article will address the most common circumstances in which people apply for bail after conviction, but it should be noted that there are other circumstances in which bail can be applied for once convicted.
What is bail?
Bail is a conditional liberty, which allows someone who has been charged with an offence to be in the community pending the hearing of their charges, or the hearing of their appeal. You may be placed on bail on your own undertaking, with a promise that you will return to court on your next court date, such as the date of the appeal.
However, if you have been convicted, it is much more likely that you will have conditions placed upon you to satisfy the court that you will appear on your next court date and that you will not pose a risk to witnesses or the public. For example, you may have a condition placed on you that requires you to report to your local police station three times a week and/or that you don’t contact or communicate with any witnesses.
What does it mean to be convicted?
For the purposes of making an application for bail pending appeal, a conviction includes the finding of guilt. So, if you were found guilty by a Magistrate or by a jury in the County or Supreme Courts then, for the purpose of applying for appeal bail, you are convicted.
Which Court do I apply for bail to?
When applying for bail, you apply to the court that found you guilty of the charges you are appealing. That is, if you are found guilty in the Magistrates’ Court then you would apply to that court for bail pending your appeal in the higher court.
The Magistrate (or Judge if you have been convicted in the County or Supreme Court), who heard your matter, will most likely be the one who decides whether you should be granted bail.
Is it difficult to get bail pending appeal?
The difficulty of getting bail will depend on a number of factors, such as which charges you have been convicted of, whether you are likely to serve the whole of your term of imprisonment before your appeal date and your prior criminal history, including whether you have any bail related offences.
Further, the court will consider whether the police, in the Magistrates’ Court, oppose a grant of bail and whether the Director of Public Prosecutions, in the County or Supreme Courts oppose it. Ultimately, however, it is a decision for the court.
In the higher courts, where typically cases involving serious indictable offences are heard, it may be more difficult to establish to the court that you should be granted bail. The Court of Appeal has stated that it will only grant bail in exceptional circumstances before the appeal against conviction is determined. That is, it is not enough just to have an arguable case against conviction or sentence, you must have reasons for wanting bail that are out of the ordinary. Whilst exceptional circumstances is a high hurdle to meet, it is not an impossible one.
Should I apply for bail?
Whether or not you apply for bail will depend on a number of factors, such as your personal circumstances, your prospects of returning to custody again and whether or not you will be able to comply with the conditions of bail that will be imposed
In most bail applications it is essential that you are able to show the court that you have an address to live at. If you do not have a residential address, there are services which offer support in getting and retaining long term accommodation. A criminal lawyer in Melbourne will be able to refer you on to the relevant service provider.
The court will also be encouraged if you have support in the community. This can be in the form of friends and family, or provided through the courts, such as the Court Integrated Services Program (‘CISP’), which can further link you into services offering drug and alcohol treatment or disability and mental health services.
As the court is likely to place conditions on you when granting bail, you must consider whether you will be able to comply for the duration of your bail. If you do not comply with bail, then you risk being charged with further offences.
If someone you know wishes to apply for bail after being convicted of an offence, or you have been provided with this article in custody and wish to appeal your conviction or sentence, then it may assist you to obtain some preliminary advice.
Questions you should ask:
- Is there merit in appealing my conviction or sentence?
- If yes, should I consider applying for bail?
As Criminal Law Specialists, Stary Norton Halphen offers a free initial conference and will be able to advise you as to the next steps.
Whether you require assistance for your bail application or the services of a criminal lawyer in Melbourne, contact Stary Norton Halphen for professional legal advice and services.
For example, Criminal Procedure Act 2009 (Vic) s 326C.
Criminal Procedure Act s 3.
Ibid s 265.
Bail Act s 18(4).
Zoudi (2006) 14 VR 580; Gant  VSCA 340.
Re Clarkson  VR 583.
Re CT  VSC 559.