A Complete Guide for Bail Applications

What is a bail application hearing?

A bail application hearing refers simply to a hearing in which a “bail authority” (i.e. a Court or a police officer) weighs up the factors for and against the grant of bail or refusal of bail, and hears submissions from an accused person and the prosecution about the bail application. Based on these submissions, the bail authority will make a bail decision (i.e. whether or not to grant bail, refuse bail, or dispense with bail entirely).

In NSW, bail applications can be made by an accused person or the prosecution, depending on what is sought. In limited circumstances, an “interested person” may also make a bail application. 

These three main types of bail application are as follows:

1. a “release application” made by the accused person for bail to either be granted, or dispensed with;
2. a “detention application” made by the prosecution for bail to be refused, revoked, or for conditions of bail to be imposed on the accused person; and
3. a “variation application” which can be made by any “interested person, for the varying of conditions of bail. An “interested person” under section 51 of the Bail Act (NSW) includes:
   • the accused person;
   • the prosecutor;
   • the complainant (in proceedings for a domestic violence offence);
   • the person for whose protection an order is or would be made, in the case of bail granted in an application under the Crimes (Domestic and Personal Violence Act 2007 (NSW); or
   • the Attorney General.

In each of these applications, it is essential that an accused person seek sound legal help and ensure they have the best criminal lawyers representing their case. Failure to obtain the best legal advice and an expert criminal defence lawyer to advocate for you in both bail applications and criminal trials can be the difference between your freedom, and remaining in custody.

Who has authority to make a bail decision?

In NSW, a bail decision must be made by a “bail authority”. A bail authority is generally either a Court or a police officer who is above the rank of sergeant.

Generally, the police will exercise the decision to grant bail in most criminal matters, however there are two main circumstances in which the matter must be brought before a Court to make a bail decision “as soon as practicable”:

1.  if the police, in the exercise of police powers to grant bail, decide to refuse bail; or
2. if the accused person has been arrested under a warrant which requires the accused person to be brought before a Court.

The Court responsible for a bail decision will generally be the appropriate Court with jurisdiction for the criminal matter being considered, either the Local Court, District Court or Supreme Court. A Court will have power to hear a bail application either when proceedings for the offence are pending in that Court, that court has convicted the person of the criminal offence and an appeal to another Court has been made but no appearance has been made, or where the application is for the variation of a bail decision made by that Court.

There are also specific restrictions on when the Local Court will have authority to hear a bail application – these largely relate to where the matter is already before the District Court or Supreme Court, subject to limited exceptions.

What happens in a bail application?

A bail application will involve a bail authority considering the circumstances of a case and determining whether bail should be granted to a bail applicant. Under section 8 of the Bail Act, a Court or other bail authority responsible for making a bail decision is able to make one of a number of decisions in response to a bail application, namely:

1. a decision to release the accused person without bail for the offence;
2. a decision to dispense with bail for the offence;
3. a decision to grant bail for the offence (with or without the imposition of bail conditions); or
4. a decision to refuse bail for the offence.

The decision will generally depend on a number of factors, with section 18 of the Bail Act providing that a bail authority must consider the following in an an assessment of a bail application in NSW:

• the accused person’s background, including criminal record, circumstances and community ties
• the nature and seriousness of the offence
• the strength of the prosecution case
• whether the accused person has a history of violence (including family violence or domestic violence)
• whether the accused person has previously committed a serious offence while on bail
• whether the accused person has a history of compliance or non-compliance with any of the following:
  • bail acknowledgements
  • bail conditions
  • apprehended violence orders
  • parole orders
  • home detention orders, good behaviour bonds or community service orders
  • intensive correction orders
  • community correction orders
  • conditional release orders
  • non-association and place restriction orders
  • supervision orders.

This places significant weight on the personal circumstances of the accused person, with the grant of bail being contingent upon a range of factors which go to the level of risk that the accused person presents to society. The outcome of a bail application will generally rely on submissions made by an accused person on one hand, and the prosecution on the other, to show whether or not the accused person poses an unacceptable risk if released from the custody of a police officer or other lawful authority.

Under the Bail Act, if a person represents an “unacceptable risk”, which is defined under section 19 as an unacceptable risk that an accused person, if released from custody, will:

• fail to appear at any proceedings for the offence
• commit a serious offence
• endanger the safety of victims, individuals or the community, or
• interfere with witnesses or evidence.

Under section 20, if there are no unacceptable risks, then the bail authority must either grant bail, release the accused person without bail, or dispense with bail. Ultimately, this will mean that the person will be released from custody pending a further court date.

In a bail application hearing, a bail authority will consider all of the above. Having regard to all of these matters, a bail decision will be made to either grant bail, refuse bail, dispense with bail or release the bail applicant without bail. 

What happens if I am refused bail?

If an accused person is refused bail, this can have a significant impact on that persons freedom in the lead up to the hearing for the substantive criminal offence of which they are accused. 

In NSW, generally a bail refusal means that an accused person will return into custody pending the substantive criminal hearing for the criminal offence of which they are charged. Only where further grounds for a bail application present themselves, can an accused person have a second bail application heard in the Local Court. The limited grounds for which a court might “rehear” a bail application include:

• if you now have a criminal defence lawyer to represent you, where you previously did not;
• if new information has come to light that was not available previously, and that information would affect a bail application;
• if your personal circumstances have changed to such an extent that a new bail application might be decided differently (such as being required to medically assist a loved one or dependant); or
• if you are a child and you have only made one bail application previously.

If a Local Court or District Court bail application is refused, the only other option available to you is to apply for a Supreme Court bail application. This process is however complex and requires strong grounds for the appeal to be accepted by the Supreme Court.

If you have been refused bail and wish to make a new bail application or appeal the refusal in a Supreme Court bail application, it is crucial to seek the best legal advice to ensure you can secure your freedom and have the refused bail decision overturned. Contact our criminal defence lawyers today for a free consultation about your options and whether a second bail application might help in your criminal law matter.

What conditions can be placed on bail?

Under Division 3 of the Bail Act, a number of conditions can be imposed on an accused person who is granted bail, or where a bail decision is varied. These bail conditions include:

Conduct requirements 

A bail condition can impose a requirement that the accused person do, or refrain from doing, an act or thing. By way of example, a bail condition can require a person to:

• attend a later court date such as a hearing, 
• to comply with a curfew, 
• to attend a police station or Court at regular intervals, 
• to remain at or remain away from a particular address, such as the persons home or the home address of a victim or witness, or 
• to comply with any violence orders in place.

Security to be provided 

A bail condition can require security (usually a sum of money) to be provided as surety for compliance with a bail acknowledgement. A security requirement can be provided by anybody, but is generally someone close to the accused person (such as a loved one). A security requirement cannot be imposed unless it addresses a bail concern that the accused person will fail to appear for a later court date in relation to the criminal offence. The sum of money will be forfeited should the person subsequently fail to appear.

Character acknowledgements 

A bail condition can require an acknowledgement, given by an “acceptable person” (other than the accused person), to the effect that they are acquainted with the accused person and that they regard the accused person as a responsible person who is likely to comply with their bail acknowledgement. This is somewhat similar to a character reference.

Accommodation requirements 

A bail condition can require that suitable arrangements be made for the accommodation of the accused person before they are released on bail. An accommodation condition of bail can only be imposed where the accused person is a child, or where it is necessary to enable the accused person to be admitted to a residential rehabilitation facility for treatment on the person’s release on bail. 

Pre-release requirements 

Only limited bail conditions are available to a bail authority which can require an accused person to comply with the condition before being released. These include the surrender of the accused persons’ passport, a security requirement, a requirement that character acknowledgements be provided, or an accommodation requirement.

Enforcement conditions 

Enforcement conditions are conditions of bail that require the person granted bail to comply, while at liberty on bail, with one or more specified kinds of police directions (given for the purpose of monitoring or enforcing compliance with the bail condition). Under section 30 of the Bail Act, enforcement conditions can only be imposed by a Court and at the request of a prosecutor, and only in limited circumstances.

Given there is scope to challenge the imposition of bail conditions, it is essential to have an experienced bail application lawyer on your side to ensure that bail conditions are only imposed where necessary. A bail application lawyer can assist with defending your case and ensuring a high likelihood of obtaining either bail without any conditions, or being released without the need for bail.