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Bail Applications in New South Wales

If you have been charged with criminal offences, you may be entitled to make a bail application to ensure your freedom in preparation for a criminal trial. Bail is an important part of criminal law not only in NSW, but across Australia, and allows a person accused of a criminal offence to exercise their fundamental right to the presumption of innocence.

This article is designed to walk you through the aspects of bail which are relevant to whether or not an accused person is entitled to bail, and some of the key aspects of bail applications.

Note that this article focuses on the law in New South Wales, and there are slightly different regimes in other jurisdictions across Australia. If you are in Victoria, Queensland, or another Australian state, make sure you seek legal help on the law relevant to your criminal matter.

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What is Bail?

In Criminal Law, Bail refers to a situation in which a person who is accused of a criminal offence is released from the custody of police officers, in exchange for a “bail undertaking”. A bail undertaking usually refers to where a person known to the accused person, provides 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 governed by the provisions of the Bail Act 2013 (NSW) (Bail Act). The Bail Act  governs most aspects of Bail in NSW, including:

  • what Bail means, including providing for the “unacceptable risk” test in determining bail applications;
  • special rules for certain criminal 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; 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 you will get bail 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 or released without bail pending a further court date.

What is a bail application?

A bail application is an application in respect of bail, either made by an accused person, or the prosecution. 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 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 a criminal 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 during a bail application?

How a bail application proceeds will depend on the jurisdiction in which the application is heard. Below, we explore the difference between a bail application in a Magistrates Court, and a Supreme Court bail application. We also explain what is involved in an application for review of a bail decision, which is available in exceptional circumstances.

Magistrates Court Bail Applications

Most bail applications take place in a Magistrates Court. Generally, this will involve your solicitor mentioning the matter in which you appear, and that you are applying for bail. Any prosecution evidence (generally, a statement of facts relating to the alleged offence, and your criminal history) will be provided to the Court, and you and your solicitor will be given an opportunity to review these documents and make any objections to their use.

Following this, the Magistrate will consider documents which the prosecution provides, and which your solicitor provides on your behalf, and then seek guidance on whether the prosecution opposes bail. If the prosecution does not oppose bail, this will be a significant factor in favour of bail being granted. If not, the prosecution will need to provide evidence about the concerns they have, which will provide you with an opportunity to object to any or all of that material.

Following this, your solicitor will make submissions to the Court on your behalf, showing why bail should be granted in the circumstances. These submissions will aim to show that you do not pose an unacceptable risk, and may rely upon your criminal history, any community ties, mental health treatment plans and deal with the criteria under section 22 of the Bail Act.

The Magistrate will then review all of the material before it, as well as submissions made by your solicitor about the source of cash/security, and make a “bail decision”.

Supreme Court Bail Applications

Supreme Court bail applications are usually conducted via videolink, where the accused person remains in custody at a correctional centre. These proceedings are generally more formal than those in the Magistrates Court, and often involve a barrister acting on your behalf, as well as the police force being represented by the office of the Director of Public Prosecutions.

The procedure is fairly similar to those in the Magistrates Court, in that your solicitor will mention your matter, following which the judge will seek the prosecutions position on bail. If bail is not opposed, this will again be a significant consideration in favour of bail being granted to the accused person.

Following this, the prosecution (or “the Crown”) will provide the Court with documents which will aim to show the strength of the prosecution case, at which point you will be given an opportunity to negotiate with the prosecution about which documents are provided. Where any evidence contained in the documents is disputed, your solicitor may be permitted by the Court to examine the police officer to determine the strength of the prosecution case, and try to show why that evidence should not be relied upon by the judge.

You will then be given an opportunity to put forward your evidence in the matter. Your solicitor may provide evidence of your character, any factors which indicate a low likelihood of offending or that show you pose a low risk. Evidence may also be sought from a person (loved one or family member) where they are depositing cash as security for bail, a professional from a rehabilitation centre or similar, or even yourself.

As with proceedings in the Magistrates Court, your solicitor will then make a series of submissions that speak to the criteria under section 22 of the Bail act, and argue why bail should be granted. 

The judge will then either provide a bail decision, or adjourn the matter in order to provide the bail decision at a later time.

Magistrates Court review of bail application

In exceptional circumstances, a person may be entitled to apply to the Magistrates Court for the review of a bail decision. This is provided for under sections 42 and 42A of the Bail Act, which hold that any decision in relation to bail can only be reviewed, on application, if:

  1. that Court has the power to make a bail order; and
  2. the Court is satisfied that the bail applicant has shown:
    1. a change in circumstances relevant to the granting of bail since the Court’s decision; or
    2. the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the Court made the decision; and
  3. for an application made by the accused person, the person has made 2 applications for bail in the Magistrates Court in the proceeding to which the bail relates.

How is a bail application decided?

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 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 that 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.

Will I get bail?

Under the NSW Bail Act, and in other Australian jurisdictions such as Victoria and Queensland, the granting of bail depends significantly on the personal circumstances of the accused person such as any criminal history. A bail decision will also depend on the seriousness of the offence and the likelihood of either further offences being committed by the accused person, or the non-compliance with bail, including any bail conditions imposed.

A bail authority can make a number of bail decisions when considering an application for bail, and it will be up to an accused person to argue that the bail decision they want, is the bail decision that should be granted in the circumstances of the matter. This is often a complex process, and can involve significant preparation and time and emotional energy.

It is therefore vital to ensure you seek expert legal advice about the procedural requirements involved in bail applications, and the factors that will help you either successfully seek bail, or ideally, be released without any bail requirements.

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How long can bail last?

Once bail is granted, bail is deemed to continue until it is either revoked, or the proceedings for the substantive criminal charges have concluded and a person is found either guilty or not guilty for the criminal offence. The length of bail therefore depends on the circumstances of the case.

What are “bail conditions”?

Even if you are able to make a successful bail application, a bail authority will be able to place conditions of 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.

What bail conditions can be imposed?

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, anything. For example, a bail condition can require a person 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.

Security to be provided 

A bail condition can require security to be provided for compliance with a bail acknowledgement. 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.

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.

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. This condition of bail can only be imposed where the accused person is a child, or 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.

What if I don’t comply with bail conditions?

A failure to comply with bail conditions or a breach of bail will generally result in bail being taken away from the accused person, and the return of the accused person into lawful custody prior to a hearing to decide the substantive criminal charges.

If you fail to appear in accordance with a bail acknowledgement given in exchange for bail, and you do not have a reasonable excuse for the failure to appear, this will in itself be considered a criminal offence. In these circumstances, it will be up to you to prove that you did in fact have a reasonable excuse for that failure to appear.

If you are unable to prove that you have a reasonable excuse for the failure to appear, the maximum penalty will be the same as the maximum penalty for the criminal charges in respect of which bail was granted.

What is a “show cause requirement”?

In respect of certain very serious offences, an accused person will be required to “show cause” as to why a bail refusal is not justified. This reverses the burden in serious criminal matters where a person has been laid with very serious criminal charges, and means that in respect of a bail decision for a show cause offence, the bail authority must refuse bail unless the accused person shows cause as to why their detention is not justified.

What is a show cause offence?

Under section 16B of the Bail Act, offences that will require an accused person to show cause as to why detention is not justified, include:

  • an offence punishable by imprisonment for life,
  • a serious indictable offence involving sexual intercourse with a person under 16 years of age, or the infliction of actual bodily harm with intent to have sexual intercourse with a person under 16 years of age,
  • a serious personal violence offence (including wounding or the infliction of grievous bodily harm where the accused person has previously been convicted of a serious personal violence offence),
  • a serious indictable offence that involves the use of a firearm, or the unlawful possession of a pistol/prohibited firearm in a public place,
  • a serious indictable offence that involves the use or possession of a military-style weapon,
  • an offence involving the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or plant,
  • a serious indictable offence committed by an accused person while on bail or while on parole and
  • an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while under a supervision order.

This is not an exhaustive list of serious offences which would require an accused person to show cause, and so if you have any questions about whether show cause requirements might apply in your criminal matter, contact our experienced criminal lawyers today for a free consultation about whether show cause might apply, and how best to defend a show cause requirement. 

At Jameson Law, we understand that preparing for and attending a court date can be complex and emotionally-draining, and our legal team is perfectly equipped to guide you through the process and help you get the best outcome in any criminal matter.

Disclaimer

The above is general legal information and should not be considered legal advice. You should speak with one of our migration lawyers for legal advice tailored to your specific legal matter. The courts and tribunals deal with matters on a case by case basis. It should also be noted that there may be delays due to COVID-19. Our lawyers are based in Sydney, we cannot assist with legal advice in a range of jurisdictions whether in Melbourne, Brisbane, Adelaide or Perth.

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Frequently Asked Questions.

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.

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.

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.

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.

The main benefit of bail is that an accused person is released from custody. This can greatly assist with the emotional stress of preparing for a trial in a criminal matter, and provide freedom to an accused.

There are no different requirements for those who are of Aboriginal or Torres Strait Islander descent, however if you identify as such, you may be able to avail yourself of free legal services from an organisation such as Legal Aid or Aboriginal Legal Service, if you are in NSW. If you would like more information on how such an organisation might help in your criminal matter, contact our expert criminal lawyers for a free discussion today.

If you don’t get bail, that will either mean you are released without bail, subject to attending a hearing in your criminal matter, or if a bail application is unsuccessful, you may be refused bail and will remain in lawful custody until a hearing is able to be held into your criminal offence.

Bail generally lasts until it is either revoked in a variation application, or when proceedings are concluded (i.e. the criminal charges are dismissed or when the accused person has been convicted and sentenced for the offence).

In NSW, a bail application will either be decided by a police with police powers to make a bail decision, or a Court, such as the District Court or Supreme Court. These authorities are referred to as “bail authorities” under the NSW Bail Act. Which bail authority will be relevant will depend on the circumstances of the specific criminal matter.

Sometimes, bail will not require any money and simply require a “bail acknowledgement” from the accused person, which is an undertaking to do, or not do, certain things. Failure to comply with the bail acknowledgement will be an offence. If security is required, the amount of bail will depend on the circumstances (including the seriousness of the offence, the likelihood of further offences and the risk posed by the accused person. This security amount will be set by the bail authority making the bail decision, having regard to these matters.

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