After the police interview me, will they let me go?

Following a police interview, an accused may either be released or held in custody. The police may not immediately decide to issue charges, and occasionally can make that decision months (or years) later.  Should they issue charges and attempt to hold an accused in custody, the police must make a remand application at court within a reasonable time. An out of sessions remand hearing before a bail justice may be held.

Can I be represented by a lawyer?

Whether or not the remand application is made before a court or a bail justice, an accused has the right to be represented by a lawyer. Should bail be refused by a bail justice at an out of sessions hearing, an application can still be made at the Magistrates' Court. It is important to be properly represented at hearings of this type, as a bail application can generally only be made at the Magistrates' court once unless new facts and circumstances apply.

How is a bail application decided?

In Australia, legal issues are decided by courts using a common law adversarial system. This means that a prosecutor will be able to make a submission opposing bail, and the lawyer representing the accused can make a submission in support of bail. A Judge or Magistrate has to balance these competing submissions when assessing the merits of a bail application, taking into account arguments presented by both parties, precedent of previous legal cases, relevant legislation and the issues determined by the facts and circumstances presented to the court.

Under most circumstances, an accused has a prima facie right to bail, and the prosecution is obligated to prove that the accused is an unacceptable risk of failing to turn up to court, or committing further offences while on bail,  or interfering with witnesses. However, where one is charged with certain types of offences, or has been alleged to have committed offences on bail, one may be required to demonstrate compelling reasons why their continued detention isn't justified.

Where an accused has been charged with Murder or other very serious offences, bail can only be granted where the defence can demonstrate that exceptional circumstances exist. This is a very high test, and requires extensive preperation to be successful.

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