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What is bail in criminal law?

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Bail and bail laws can be incredibly complex and confusing to understand. Here at Jameson Law, we understand that finding yourself or a loved one facing a criminal charge can be an overwhelming and distressing experience. One crucial aspect of the legal process in Australia is bail, which can provide some relief during this challenging time when an individual is charged with an offence. Bail is the temporary release of an accused person from custody while they await trial or other legal proceedings. It is granted under specific conditions, aiming to strike a balance between justice and being fair to those who are accused of a criminal offence. It means that rather than sitting in a jail cell before your court date, you can instead move freely.

In Australia, the concept of bail is built upon the principle of the presumption of innocence until proven guilty. Our legal system recognizes that every individual should have the opportunity to present their case and prepare a robust defence without unnecessary pretrial detention. Bail acts as a safeguard, allowing you or your loved one to remain in the community, maintain employment, and provide support to your family while awaiting trial.

Jameson’s experienced team of criminal defence lawyers is dedicated to guiding you through the intricacies of the bail process, ensuring that your rights are protected and that you receive the best possible outcome in your case.

Bail Laws in New South Wales

In NSW, the Bail Act 2013 is the legislation that governs bail. According to this act, the court considers various factors when deciding whether to grant bail. In order for an individual to be granted bail, several factors will be considered. These include the seriousness of the offence, the strength of the prosecution’s case, the accused person’s criminal history, their ties to the community, and the likelihood of them showing up for court. The court also evaluates any potential risks associated with releasing the accused, such as the risk of reoffending, interfering with witnesses, or failing to appear in court.

The Bail Act 2013 in NSW emphasizes the presumption in favour of bail, meaning that bail is generally granted unless there are strong reasons not to. However, for certain serious offences known as “show cause offences,” the accused must demonstrate why their detention is not justified. These offences typically involve crimes like murder, certain drug offences, or offences committed while already on bail.

When an individual is granted bail the court may impose conditions to ensure that the accused complies with the legal process and addresses any identified risks. These conditions might include reporting to the police, residing at a specific address, surrendering travel documents, or refraining from contacting certain individuals. Failing to comply with these conditions can result in bail being revoked and the accused being returned to custody.

'Serious offences' and the need to 'show cause.'

Offences that are deemed to be ‘serious offence’ reverse the onus and puts different conditions on how bail can be granted. Section 18 of the Bail Act in New South Wales (NSW) outlines the specific provision regarding the presumption against bail for a serious offence. This section is commonly referred to as the “show cause” provision.

Under Section 18, if a person is charged with an offence specified in the Bail Act as a “show cause offence,” they are required to demonstrate why their detention is not justified. This provision shifts the burden of proof to the accused, meaning they must provide compelling reasons to convince the court to grant them bail.

The specific offences that fall under the “show cause” category are listed in Schedule 1 of the Bail Act. These offences generally involve serious crimes such as murder, certain drug offences, serious sexual offences, and offences committed while already on bail. For individuals charged with these offences, the court assumes that their detention is necessary to ensure the safety of the community and the proper administration of justice.

To successfully obtain bail for a “show cause offence,” the accused must present strong arguments and evidence to counter the presumption against bail. They need to demonstrate exceptional circumstances that justify their release, such as an absence of flight risk, strong community ties, employment or education commitments, or health issues that cannot be adequately addressed in custody.

Some of the conditions that the court considers bail conditions can be seen below: –

  • Factors such as the accused’s personal background, which includes their past criminal record, individual circumstances, and connections to the community;
  • The type and severity of the alleged offences;
  • The strength of the prosecution’s case against the accused;
  • Any history of violent behaviour exhibited by the accused;
  • Instances where the accused has previously committed serious offences while on bail;
  • The accused’s track record of compliance or non-compliance with court orders, including previous bail conditions;
  • Associations the accused may have with individuals involved in criminal activities;
  • The potential duration of the accused’s detention if bail is denied;
  • Whether the accused has any specific vulnerabilities that would make their time in custody particularly burdensome;
  • The accused’s conduct towards alleged victims and their families.

Can my bail be refused?

Granted bail is not always a given. Your bail can be refused by the court if the court deems that there is an ‘unacceptable risk,’ as outlined in section 19 of the bail act. In situations where there is an unacceptable risk that the accused would engage in specific behaviours if granted bail, the court is required to deny bail to that individual. Bail cannot be granted if there exists an unacceptable risk that the person would:

  • fail to appear in court for the offence.
  • commit a serious offence while on bail,
  • endanger the safety of victims or the community in general; and/or
  • interfere with witnesses or evidence.

How many times can I apply for bail?

In New South Wales (NSW), there isn’t a specific limit on how many times you can apply for bail. If your initial bail application is unsuccessful, you have the right to make subsequent applications at later stages of your legal proceedings. However, it’s important to note that repeatedly applying for bail without significant changes in circumstances or new evidence may not be viewed favourably by the court.

Each bail application is evaluated based on its individual merits, considering factors like the nature of the offence, the strength of the case against you, any changes in circumstances, and any additional information or arguments you can present. It’s advisable to seek guidance from an experienced criminal defence lawyer who can assess your situation and provide advice on the most appropriate course of action regarding bail applications.

It’s worth mentioning that the court may also consider the principle of finality. This means that if you’ve made multiple unsuccessful bail applications without significant changes, it might become increasingly challenging to convince the court to grant bail. However, the court has the discretion to assess each bail application on its own merits.

Which court will handle my bail application?

In New South Wales (NSW), bail applications are typically considered by the Local Court or the District Court, depending on the seriousness of the offence. The Local Court has jurisdiction over less serious offences, while the District Court handles more serious cases.

For less serious offences, the bail application is usually heard in the Local Court, which is the lower court. The Local Court has the authority to grant or refuse bail based on the circumstances presented. In some cases, the police or prosecution may oppose bail, and a bail hearing will be conducted to determine whether the accused should be granted bail.

For more serious offences, such as indictable offences or cases that are deemed to be of higher severity, the bail application may be referred to the District Court. The District Court has the power to consider bail applications for these more serious matters. In rare instances, the supreme court may see the case through on appeal.

What happens if I am refused bail?

If your bail application is denied in New South Wales (NSW), it means the court has decided that releasing you would pose too much of a risk. The specific consequences of the court refusing bail depend on your individual circumstances and the stage of your legal proceedings. Section 19 of the Act states that bail must be denied if there is an unacceptable risk based on bail concerns. In accordance with section 34, when you are refused bail, the court or authorized justice must promptly provide the defendant with a written notice of refusal that includes the decision’s terms and any required information about reviewing or changing the decision. It is important to note that once bail has been denied in the Local Court, the accused is unable to submit another bail application in the Local Court unless there are valid reasons for seeking further release as outlined in Section 74(1) of the Bail Act 2013.


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