What is a Release Application?

When someone is charged with a criminal offence in Australia, they are typically either granted bail or held in custody while awaiting their court hearings. If bail is refused, the defence can make a release application to the court, seeking the accused person’s release from custody.

A release application is essentially a request for the court to reconsider whether the accused can be released back into the community while their case is ongoing. This application is typically made under bail laws, which vary slightly across different states and territories but are guided by similar principles.

What does the Court Consider?

When deciding a release application, the court will weigh several factors, including:

• The Risk of Flight: Does the accused have ties to the community (like family, employment, or housing)? If not, the court may fear they might not return for their hearings.
• The Nature and Seriousness of the Offence: The more serious the alleged offence, the higher the risk that bail might be denied.
• Risk to the Community: Could the accused pose a danger to public safety if released? This includes risks of reoffending, intimidating witnesses, or interfering with evidence.
• Strength of the Prosecution’s Case: If the evidence against the accused is weak, the defence might argue that it is unfair to keep them in custody.
• Special Circumstances: Personal circumstances – such as poor health, family responsibilities, or the impact of custody on the accused’s ability to prepare their defence – may be argued by the defence.

When is a Release Application Made?

A release application can be made:

1. After an Initial Bail Refusal: If bail was refused when the accused was first brought before a magistrate.
2. After a Significant Change in Circumstances: For example, if new evidence weakens the prosecution’s case or the accused’s personal situation changes significantly.

Requirements of a Successful Release Application

• The defence needs to present compelling arguments against concerns the court may have about releasing the accused.

• The defence might propose bail conditions – such as regular reporting to police, surrendering a passport, or residing at a specific address – to mitigate risks.

• The defence may also argue for release based on the principle of innocent until proven guilty, emphasising that the accused has not yet been convicted of any offence.

Why Are Release Applications Important?

Holding someone in custody before their trial can have serious consequences, including loss of employment, disruption to family life, and significant stress. A release application ensures that detention is only used where absolutely necessary and balances the rights of the accused with the safety of the community.

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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