Being arrested and facing criminal charges is a stressful experience. If the Prosecution opposes your release on bail, it can understandably heighten your anxiety. This post aims to explain why Prosecution might oppose bail, the factors considered by the court, and address some common concerns you might have.

Why Would Police Oppose Bail?

The fundamental role of the Police is to uphold the law and ensure community safety. When deciding whether to oppose bail, they will primarily consider whether your release poses an unacceptable risk in one or more of the following areas:

Failure to appear in Court – Police will assess your history of attending court, your ties to the community (such as employment, family, and a stable home address), and whether you have previously failed to appear on bail or had arrest warrants issued against you. If they believe you will fail to attend future court hearings, they are likely to oppose bail.
Committing further offences while on bail – Police will look at the nature of the current charges, your prior criminal history (especially any history of similar offending), and whether you have a record of committing offences while on bail. If there is concern that you might re-offend and endanger the community, Police will most likely oppose your release.
Interfering with witnesses or evidence – If there is a risk that you might try to intimidate or contact witnesses, tamper with evidence, or obstruct the Police investigation, this will be a strong reason for Police to oppose bail. This is a particular concern in cases involving family violence or where there are identifiable witnesses whom you might know or are likely to interact with.

What are the Thresholds for Bail?

Under the New Zealand Bill of Rights Act, you have the right to be presumed innocent until proven guilty. Because of this, the starting point is usually that you should be released on reasonable terms. The court must carefully balance your fundamental rights against the Police’s concerns for public safety and the judicial process.

If the offence does not carry a sentence of imprisonment, you are bailable as of right. You are also bailable as of right for lower-level offences that carry a maximum sentence of imprisonment of less than three years, unless the offence involves assaulting a family member or a child, or you have previously been sentenced to imprisonment.

If you are not ‘bailable as of right’, then you must be released on ‘reasonable terms and conditions’ unless the Court is satisfied that there is ‘just cause’ for continued detention. In practice, the Prosecution must satisfy the Court that there is an unacceptable risk in one or more of the areas mentioned above, and that no bail condition can mitigate that risk.

There are certain exceptions where you, the defendant, must satisfy the Judge why you should be granted bail. In those circumstances, the Police do not need to show why there is just cause for continued detention—you need to convince the Judge that you should be granted bail. These situations often involve more serious offences and a history of offending. Some examples include:

Having previous convictions for specified serious offences and being charged with another specified offence.
Being charged with murder or Class A drug dealing offences.
Being charged with an offence punishable by three or more years of imprisonment while on bail or at large awaiting trial for another offence punishable by three or more years’ imprisonment and having previously received a sentence of imprisonment.
Being charged with certain family violence offences, even if the maximum penalty is less than three years.
When you have been found guilty or have pleaded guilty and bail is opposed.

In these situations, you will need to convince the Judge that, on the balance of probabilities, you should be granted bail and that there are sufficient mitigations to address the risk in releasing you. This can include release on electronic monitoring, a curfew, or a reporting condition to the local Police station.

What Might You Be Anxious About?

It is natural to feel anxious if bail is opposed. Here are some common concerns and points to consider:

Being held in custody – The immediate worry is likely about being detained in prison while you await your court hearings. It is important to remember that if bail is refused initially, you have the right to appeal that decision to a higher court.
The seriousness of the charges – The more serious the charges you face, the more likely Police are to oppose bail, and the greater the mitigating conditions you might need to consent to in order to be released.
Bail conditions – Even if bail is granted, it will likely come with conditions. These can range from simple requirements like residing at a specific address and not contacting certain people, to more restrictive conditions like curfews, electronic monitoring, and being subject to drug or alcohol testing.

What Can You Do?

If you intend to apply for bail, it is important that you engage with a lawyer. They will be able to:

Advise you on your rights and the bail process.
Gather information relevant to your bail application, such as evidence of your community ties, employment, and support systems.
Make submissions to the Court arguing why you should be granted bail and addressing the Police’s concerns.
Negotiate potential bail conditions with the Police.
Explain the implications of any bail conditions and the consequences of breaching them.
Appeal a decision to refuse bail if necessary.

The fact that Police oppose bail does not automatically mean you will be kept in custody. The Court will make the final decision after considering all the relevant information and legal arguments.

The first step in getting support is to talk with a lawyer from Frontline Law about your situation and see what options we can offer you. Contact Frontline Law for a free initial consultation.

*The information in this blog post is general in nature and is not legal advice. If you need advice, you should contact us about your specific situation.