What is a Detention Application?

In criminal proceedings, the prosecution may make a detention application to request that an accused remain in custody while awaiting trial or sentencing.

A detention application is a formal request made by the prosecution to the court, asking for the accused to be detained in custody rather than being released on bail.

These applications are made in accordance with bail laws, such as the Bail Act 2013 (NSW), which governs when and how bail is granted or refused.

Why Might an Application be Made?

The prosecution generally argues that keeping the accused in custody is necessary to:

• Protect the community or individuals from harm;
• Ensure the accused attends court when required; or
• Prevent interference with witnesses or evidence.

The decision to grant or deny bail following a detention application is made by the court after considering all relevant factors.

When is a Detention Application Made?

A detention application can be made at different stages of the criminal process, including:

1. After Arrest: When the accused is brought before the court for their first bail hearing.

2. Following a Bail Breach: If the accused has violated bail conditions, the prosecution may seek their detention.

3. During an Appeal: If the prosecution believes that new evidence or circumstances justify detention, they may file an application for reconsideration of bail.

What Factors are Considered?

When deciding on a detention application, the court weighs several factors to determine whether bail should be granted or denied. These include:

1. The Nature and Seriousness of the Offence

Serious offences like violent crimes or those involving significant harm to the public often weigh against granting bail.

2. Strength of the Prosecution’s Case

If the evidence against the accused is particularly strong, it may increase the likelihood of detention.

3. Risk of Flight

The court assesses whether the accused might fail to appear for their court dates.

4. Risk to Public Safety

If there’s a likelihood of the accused committing further offences or endangering others, detention becomes more likely.

5. The Accused’s Personal Circumstances

This includes their criminal history, ties to the community, employment, family responsibilities, and health.

What Happens if the Court Grants the Application?

If the court approves the detention application, the accused will remain in custody until their next court appearance or the resolution of their case. They may be held in a remand centre or correctional facility.

In some cases, the accused can later reapply for bail if circumstances change, such as new evidence coming to light or significant delays in the trial process.

Importance of Detention Applications

These applications highlight a tension between two key principles of criminal justice:

1. The Presumption of Innocence: Every person is considered innocent until proven guilty. Detaining someone before trial limits their liberty despite no finding of guilt.

2. Community Protection: Courts have a duty to safeguard the public and ensure the integrity of the legal process.

By making these decisions, courts aim to balance individual rights with public safety, ensuring that detention is used only when absolutely necessary.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Cassidy Pole, paralegal.

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