Introduction to Bail Applications
Bail applications can be a stressful process, made more stressful in the context of criminal charges where criminal prosecutions can often take months, if not years to be concluded.
The prospect of having a bail application refused or granted with onerous bail conditions has significant consequences for a defendant and can mean your freedoms can be significantly impacted, including being subjected to ongoing custody pending the conclusion of the proceedings against you. If you have been accused of a criminal offence and need legal advice or representation, our expert criminal lawyers are experienced in assisting clients with bail applications in a range of jurisdictions.
The law around bail in NSW is governed by the Bail Act 2013 (NSW) (Bail Act). The Bail Act is a complex piece of legislation which governs all aspects of the bail application process in NSW. Similar pieces of legislation operate to govern bail in other jurisdictions around Australia, such as Victoria and Queensland. Navigating these laws can be frustrating, and it is essential to seek sound legal advice to achieve the best outcome in any criminal matter.
Note that this article focuses on the Bail Act in NSW, if you are in another Australian jurisdiction, including Melbourne or Brisbane, our criminal law firm can provide you with guidance on the law applicable in your criminal law matter.
Why do I need a lawyer in a bail application?
Bail applications can be complex, and involve careful consideration of the law around bail in your jurisdiction. These laws are unique and apply differently to every matter due to how dependent bail decisions are on the individual circumstances of a matter.
While it is not strictly necessary to have a lawyer representing you at a bail application hearing, an experienced criminal defence lawyer is often vital if you want the best outcome where you have been charged with a criminal offence. Criminal lawyers can assist with all aspects of criminal matters, including bail applications, trials and sentencing hearings.
Crucially, criminal lawyers can assist you with all aspects of criminal law and criminal procedure, including:
- ongoing legal advice about the options available to you at all stages of a criminal matter from responding to charges to sentencing hearings and assessing the strength of the prosecution case against you;
- assistance with court hearings and court dates, and in the drafting of legal documents and submissions to simplify the process and assist with your dealings with legal authorities; and
- representation in any bail hearings, criminal trials or sentencing hearings.
Our criminal lawyers specialise in providing legal assistance in all aspects of criminal law and criminal procedure, and without expert legal advice, there is a risk that you will be refused bail and face unnecessary time in custody. Our lawyers take as much stress out of complex legal processes as we can, and having an experienced criminal law firm like ours in your corner can keep the costs of managing a bail application low, while maximising the chance that you will get the best outcome available to you.
What is Bail?
In Criminal Law, Bail refers to a situation in which a person who is accused of a criminal offence and is pending a full trial to determine guilt for that offence, is released from the custody of police officers until that trial (or an interim court date), in exchange for a “bail undertaking”. A bail undertaking usually refers to an agreement to attend court at a later date, but can also require a person known to the accused person, to provide an undertaking to the Court that if the accused person fails to comply with bail, including any bail conditions, they are liable to pay a sum of money.
In NSW, bail is to be determined under the provisions of the Bail Act 2013 (NSW) (Bail Act). The Bail Act therefore governs most aspects of Bail in NSW, including:
- what Bail means, including providing for the “unacceptable risk” test in determining bail applications and whether or not to refuse bail applications;
- special rules for certain criminal offences, such as a “show cause” requirement in the case of serious offences;
- the bail conditions that a Court can impose on an accused person who is granted bail;
- the bail decisions that can be made by a Court (i.e. grant or refuse bail, dispense with bail or release without bail); and
- procedural aspects of bail applications.
Under section 7 the NSW Bail Act, “bail” simply means “authority to be at liberty for an offence“. Under this section, bail can be granted to any person accused of a criminal offence.
Generally, whether or not a bail application is successful will depend on the seriousness of the offence, as well as any criminal record or other factors which might indicate that you are an unacceptable risk if released from custody prior to a future court date. This means that unless you pose an unacceptable risk, there is a high likelihood that you will be granted bail with or without any conditions, or released without bail pending a further court date.
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:
- a “release application” made by the accused person for bail to either be granted, or dispensed with;
- 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
- 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”:
- if the police, in the exercise of police powers to grant bail, decide to refuse bail; or
- 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:
- a decision to release the accused person without bail for the offence;
- a decision to dispense with bail for the offence;
- a decision to grant bail for the offence (with or without the imposition of bail conditions); or
- 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:
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.
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.
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.
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 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.
When can bail conditions be imposed?
Even if you are able to make a successful bail application, a bail authority will be able to place conditions on that bail, in certain circumstances.
Where an accused person is granted bail (or even if a bail decision is varied) in circumstances where “bail concerns” exist, a bail authority such as a Court is able to impose conditions of bail in order to address those bail concerns.
Under section 17 of the Bail Act, a “bail concern” refers to a concern that an accused person, if released from custody, will:
- fail to appear at any proceedings for the offence, or
- commit a serious offence, or
- endanger the safety of victims, individuals or the community, or
- interfere with witnesses or evidence.
If the bail authority is satisfied that there are identified bail concerns with respect the accused person, under section 20A the bail authority is able to impose a bail condition only if they are satisfied that:
- the bail condition is reasonably necessary to address a bail concern, and
- the bail condition is reasonable and proportionate to the offence for which bail is granted, and
- the bail condition is appropriate to the bail concern in relation to which it is imposed, and
- the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and
- it is reasonably practicable for the accused person to comply with the bail condition, and
- there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.
This section places a high threshold on when conditions of bail can be imposed, as the bail authority must be satisfied of ALL of these matters before imposing any bail conditions on an accused person. Notwithstanding this, it is critical to obtain high quality legal advice and representation from an experienced bail application lawyer, to maximise the chances of being granted bail or even being released with no conditions.
Frequently Asked Questions
- What is bail?
Bail is simply the release of an accused person, subject to the condition of a bail acknowledgement. A bail acknowledgement generally involves either financial security provided by someone close to an accused person, or an agreement to attend a later court date or undertake to attend a police station or not to commit any further offences.
What are bail conditions?
Bail conditions are simply conditions upon which bail is granted or varied. Bail conditions include conduct requirements, such as requirements to attend a later court date, to comply with a curfew, to attend a police station at regular intervals, to remain at or remain away from a particular address, or to comply with any violence orders in place. Conditions might also include security, accommodation requirements, pre-condition requirements, or a character acknowledgement.
What is a bail decision?
A bail decision is a decision whether or not to grant an accused person bail. In NSW, a decision may include the grant or refusal of bail, the release of the accused person without bail, or the dispensing of bail altogether. A bail decision can be made by any bail authority.
How is a bail decision made?
A bail decision depends on the risk an accused person would be if released from custody. This depends on the personal circumstances of the accused, the seriousness of the offence and other circumstances including any criminal record or if the offence is a first time offence
- Do you need a lawyer for a bail application?
While a lawyer is not necessary, it is highly recommended that an accused person seek legal advice and representation in any criminal law matter, including a bail application. Legal procedures can be complicated and require specialist experience to navigate. Expert criminal lawyers can assist providing ongoing legal advice and representation to ensure costs are minimised and the chances of a favourable outcome are maximised. Our criminal law firm specialises in bail applications, so contact our legal team today for a free consultation on how we might assist you.
- What happens during a bail application?
During a bail application, a bail authority such as a police officer or Court will determine whether or not an accused person should be granted bail, whether bail conditions are required, or whether bail should be dispensed with or refused. A bail decision will be made and will depend on a range of circumstances, such as the accused person’s criminal history, likelihood of further offences or of the accused person to breach bail, the seriousness of the offence, or whether this is the accused person’s first time offending or first application for bail.
- How long does a bail application take?
In many cases, a bail application hearing will take place as soon as practicable after a person is charged with and arrested for, a criminal offence. The length of a bail application hearing can depend on many factors.
- What is a show cause requirement?
If you have been charged with a more serious offence, you may be required to overturn a presumption that bail should be refused. For offences punishable by imprisonment for life, many serious sexual offences, firearms offences and a range of other serious indictable offences, an accused person will need to “show cause” as to why refused bail is not justified.
- Who pays for bail?
Bail will generally be paid by someone known to the bail applicant, such as a family member or loved one. Should the bail applicant fail to comply with a bail undertaking (i.e. a promise to attend court at a later date), that sum of money will be forfeited to the bail authority.
The above is general legal information and should not be considered legal advice. You should contact our law firm for legal advice tailored to your specific legal matter. The courts deal with matters on a case-by-case basis. It should also be noted that there may be court delays due to COVID-19 and alternative arrangements made for legal proceedings