Bail
If you have been charged with a criminal offence, you may be placed in custody pending the outcome of your court proceedings. Criminal matters can sometimes take several months or even years to be finalised. Therefore, it is vital that you apply for bail as early as you can, to not be held in remand for unnecessary periods before your guilt has even been determined.
When successful, bail applications can ensure that you can rightfully await the outcome of your trial in a safe and comfortable environment such as your own home, rather than in custody.
It is imperative to employ experienced and knowledgeable criminal defence lawyers who can provide you with exceptional legal representation to give you the best chance of being granted bail. Our team at Criminal Lawyers – Defending You has a proven track record of 100% of our clients being released on bail. We provide honest, practical, and realistic advice on assisting you in your bail application process. We can assure you we don’t shy away from a challenge and are prepared to deliver a strong defence to argue your case.
If you or someone you know wants to apply for bail, we encourage you to contact our team of experienced lawyers to ask for advice or assistance in preparing and presenting your application. Enquire our website or call us today at (02) 9060 9799.
What is Bail?
As per the Bail Act 2013 (NSW), section 7(1) defines bail as, “authority to be at liberty of an offence”, subject to limitations outlined in section 14. This means that an accused person can be released from custody if bail has been granted (section 7(2)).
However, the limitations set out in section 14 stipulate that bail cannot be provided unless:
(a) the person signs, and gives to the bail authority, a copy of the bail acknowledgment for the decision to grant bail, and
(b) all pre-release requirements of bail conditions have been complied with.
For example, a pre-release requirement may include bail conditions such as surrendering your passport before being released. These conditions can be found in Part 4 of the Act.
A person is not entitled to be granted bail on those occasions the person is required to appear before court (s 14(2)).
Purpose of the Bail Act 2013 (NSW)
The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions (s3(1)).
Amendments to Laws Relating to Bail
New Section 22B (Bail Act 2013)
A significant change to the Bail Act 2013 (NSW) was passed on 23rd June 2022 and assented on 27th June 2022, with a new section 22B being introduced. This section requires bail to be refused following conviction (where an accused has been found guilty or entered a plea of guilty) and before sentencing for an offence for which the offender will be sentenced to imprisonment and to require that electronic monitoring be imposed as a bail condition must meet any minimum standards prescribed in the regulations. It stipulates that the court must refuse bail unless there are special or exceptional circumstances.
This new and tougher presumption against bail will apply when there is a release or detention application made post plea/conviction. Circumstances where this could arise include:
where you have breached bail and appear on a detention application (and a plea of guilty is entered or has been previously entered);
where you have been convicted under section 196, a warrant has been issued and you appear and apply for bail;
where you have entered a plea of guilty and the prosecution makes a detention application;
where you are found guilty after a hearing or trial and the prosecution makes a detention application.
How Do You Apply for Bail?
Assistance with applying for bail in the Local Court
Applying for Bail in a Local Court
A Local Court Bail Application can only be submitted once, therefore, it must be filled out correctly.
Before making a bail application at a local court, the accused person must lodge a bail application form with the local court registry. This form can be found here:
https://localcourt.nsw.gov.au/local-court/types-of-cases/bail.html#Related2
A copy of this form needs to be provided to the prosecution or police officer involved in your case, as well as the local court registry where your bail application is to be heard. They will then provide a date for your hearing to be listed on.
At Criminal Lawyers – Defending You, our team is experienced in assisting clients with defence documents that will be advantageous to their bail hearing. These can include affidavits, letters from surety, a letter of consent from whom you will be residing with if your bail is granted, and any other necessary information to support and strengthen your bail application.
Submissions from both sides will be heard regarding whether or not to grant bail. To strengthen the likelihood of being granted bail, we recommend contacting an experienced lawyer to represent you.
If you require assistance in your application for bail in a higher court, please contact our experienced team of criminal lawyers for a consult today at (02) 9060 9799.
Bail Concerns
Section 17 of the Bail Act 2013 (NSW) outlines that the court will assess any ‘bail concerns’ before making a decision. This section addresses any concerns that an accused person if released from custody, will:
(a) fail to appear at any proceedings for the offence, or
(b) commit a serious offence, or
(c) endanger the safety of victims, individuals, or the community, or
(d) interfere with witnesses or evidence.
After assessing these bail concerns, if the court finds any of them to operate to an unacceptable level, then the court has no discretion to grant you bail and you will remain in custody.
Bail Considerations
Furthermore, section 18 of the Bail Act 2013 (NSW) outlines a range of factors the courts must consider when deciding if an individual should be granted bail. It is important to know these matters to properly address them in your submissions when applying for bail. Considerations the court may make include:
the accused person's background, including criminal history, 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,
whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction),
whether the accused person has a history of compliance or non-compliance with court orders such as bail acknowledgements, bail conditions, AVOs, parole orders, home detention orders, community correction orders, or conditional release orders.
whether the accused person has any criminal associations,
the length of time the accused person is likely to spend in custody if bail is refused,
the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,
if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,
the need for the accused person to be free for any other lawful reason,
the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,
in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,
the bail conditions that could reasonably be imposed to address any bail concerns per section 20A,
whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code),
whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism,
whether the accused person has any associations or affiliations with any persons or groups advocating support for terrorist acts or violent extremism.
Outcome of Bail
Section 20 provides, subject to Pt 3 Div 1A and Div 2A, that if there are no unacceptable risks for an accused, the bail authority must:
• grant bail (with or without conditions)
• release the person without bail, or
• dispense with bail.
Conditional Release
A conditional release is when an accused is released on bail under strict conditions that they must follow.
The following list has been sourced from the Judicial Commission NSW. It outlines the bail conditions which can be imposed upon release:
Conduct Requirement
section 5
Available when necessary to address a bail concern.
A requirement that the accused do or refrain from doing anything (other than to provide security for compliance with a bail acknowledgment).
For example, a place restriction, or not to contact or approach certain persons, or not to drink alcohol.
Security Requirement
section 25
Available only for the purpose of addressing a bail concern that the person will fail to appear, and only where that purpose is not likely to be achieved by one or more conduct requirements.
A requirement that security be provided by the accused, or an acceptable person/s for compliance with a bail acknowledgment. This is a form of pre-release requirement: see Pre-release requirement: s 29.
Such a condition may include:
an agreement to forfeit a specified amount of money if the accused fails to appear
the deposit of a specified sum of money or other acceptable security with the court with an agreement that it be forfeited if the accused fails to appear.
The court is to determine what amounts to “acceptable security”: s 26(4).
Character Acknowledgement
section 27
Available only where the purpose for imposing is not likely to be achieved by one or more conduct requirements: (s 27(3)).
An acknowledgment given by an acceptable person to the effect that they are acquainted with the accused and regard the accused as a responsible person who is likely to comply with their bail acknowledgment.
The court is to determine what person/s or class/description of persons is an “acceptable person”: (s 27(3)).
Accommodation Requirement
section 28
Available only where the person is a child or to enable the person to enter residential rehabilitation or where otherwise authorised by the regulations: s 28(3).
A requirement that suitable accommodation arrangements be made for the accused before their release on bail. This is a form of pre-release requirement: see Pre-release requirement: s 29.
An accommodation requirement is complied with when the court is informed by an appropriate government representative that suitable accommodation has been secured: s 29(4).
Note: This condition cannot be imposed by a police officer.
Once imposed, a court must re-list the matter every two days, until the condition is met: s 28(4).
Pre-release Requirement
section 29
Can be applicable to any accused
A condition that must be complied with before the accused is released on bail.
This may only be either:
a conduct requirement that the person surrender their passport
a security requirement, or
an accommodation requirement.
a requirement that one or more character acknowledgments be provided.
Upon compliance with a pre-release requirement (as set out in s 29 or the regulations), the accused is entitled to be released without any rehearing of the matter: s 29(5).
Enforcement Condition
section 30
Available only where considered reasonable and necessary *
A condition imposed for the purpose of monitoring or enforcing compliance with another bail condition (the underlying bail condition) that requires the person to comply while on bail with one or more specified police directions given for that purpose.
This condition can only be imposed by a court and only following an application by the prosecutor. For example, where a person has a bail condition not to consume alcohol, an enforcement condition may be imposed that the person be breath tested by a police officer at certain times/places.
An enforcement condition must specify (s 30(4)):
the kinds of directions that may be given to the person while at liberty on bail
the circumstances in which each kind of direction may be given (so as to ensure compliance with the condition is not unduly onerous)
the underlying bail condition/s for which each direction may be given.
Reasonable and necessary have regard to:
the person’s history (including their criminal history, particularly any serious offences or a large number of offences)
the likelihood/ risk of the person committing further offences while on bail
the extent to which compliance with any direction/s by the person may unreasonably affect another person.
The general requirements of bail conditions set out in s 20A do not apply to enforcement conditions: s 20A(3).
Unconditional Release
An unconditional release means that there are no circumstances which you have to abide by as a stipulated term of your release. There are no additional requirements after you have been released from custody, other than that you are obliged to attend your court hearing on the intended date.
What if Bail is Refused?
Bail can be refused when the court is:
satisfied there is no cause shown (where the relevant offence is a show cause offence), or
not satisfied that exceptional circumstances exist
following an assessment of bail concerns, finds that there is an unacceptable risk upon the release of the accused person.
Breaching Bail
What happens if you don’t comply with bail conditions?
There are limited circumstances under which ‘further grounds’ can be made for a bail application in the same court as you originally attempted to do so. These are outlined in s74(3) of the Bail Act 2013:
The person was not legally represented when the previous application was dealt with and the person now has legal representation, or
Material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or
Circumstances relevant to the grant of bail have changed since the previous application was made
E.g. Where someone dependant on you has fallen ill and you now need to care for them
The person is a child and the previous application was made on a first appearance for the offence.
If none of these grounds exist, you can appeal the original bail decision in the Supreme Court.
However, the court may refuse to hear a bail application if satisfied:
that it is frivolous or vexatious (s 73(1)(a)), or
it is without substance or otherwise, has no reasonable prospect of success: s 73(1)(b).
Our experienced team of lawyers can assist you with all your bail needs. If you feel you did not represent your bail application most advantageously on your first appearance, our team at Criminal Lawyers – Defending You can advise you on your appeal throughout the entire process.
What happens if you can’t comply with bail conditions only on certain occasions?
We understand that circumstances unexpectedly arise where you cannot meet your bail requirements.
The following table provides examples of unforeseen situations which may arise and how you should proceed if it results in you being unable to comply with your imposed bail condition/s.
What you should do when you can't comply to a bail condition
Circumstance:
You are generally unable to meet your bail condition/s due to an unexpected circumstance arising.
To Do:
Contact the police station where you are supposed to report and inform them of your circumstances.
Circumstance:
You are unable to attend a drug or alcohol treatment program.
To Do:
Inform the program coordinator.
Circumstance:
You are unable to get home in time for your curfew.
To Do:
Inform the police of your circumstances.
Circumstance:
Unable to comply with a bail condition because you are sick.
To Do:
Obtain a medical certificate as soon as possible and present it to the police.
However, although you may have medical proof or sufficient evidence of why you were unable to meet a bail condition, you may not be let off unless you can demonstrate the seriousness of your illness, situation, or reason. The problem or circumstance should be so unavoidable that you could not reasonably be expected to meet your bail conditions on that day.
What happens if you can’t comply with bail conditions at all?
Circumstances such as moving residence, starting a new job, and working hours outside your curfew may inflict consistent issues with being able to meet bail requirements.
In such cases, we can assist you with a ‘bail variation’. This involves rectifying or amending your bail conditions to adapt to changing circumstances in your life. Our experienced team of lawyers can advise you on how successful your bail variation will be and the best option for your circumstances.
Tests for Bail
The test for bail is a two-stage process.
Step 1. Show Cause Requirement / Exceptional Circumstances Requirement
(a) certain serious offences under Pt 3 Div 1A — “Show cause requirement”, or
(b) terrorism-related offences — “Exceptional circumstances requirement” — s 22A.
Step 2. The unacceptable risk test (for all offences) under Part 3, Division 2.
These two steps must be separate and not conflated. As per DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25], determination of the unacceptable risk test is not determinative of the show cause test.
Step 1 - Show Cause Requirement
Step 1(a) “Show cause” offences
Section 16A(1) provides that a bail authority must refuse bail unless the accused shows cause why his or her detention is not justified. In making this determination, the bail authority must consider all the evidence or information the bail authority considers credible or trustworthy in the circumstance (s 31(1)); DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].
Moukhallaletti v DPP (NSW) [2016] NSWCCA 314 at [50]–[56] outlines the basic principles applying to a determination of whether an applicant has shown cause that their detention is not justified.
The Act does not specify what will satisfy the show cause test. Nor does consideration of what might have satisfied the show cause test in an individual case assist since bail decisions of single judges of the Supreme Court are often not of precedential value and are no more than the view taken by the judge in the circumstances of the particular case: DPP v Zaiter [2016] NSWCCA 247 at [30], [33].
Offences to which the show cause requirement applies is outlined in section 16B of the Bail Act 2013. A bail authority such as the court, a police officer, or an authorised justice can also determine if the person is charged with a “show cause” offence.
If yes, the Flow Chart 1 from s16 of the Bail Act 2013 applies.
Step 1(b) Terrorism Related Offences
For advice on terrorism-related offences, please contact our experienced team of criminal lawyers to assist you in achieving the best possible outcome for your case
Step 2 - The Unacceptable Risk Test
Step 2 – The unacceptable risk test
If a person charged does show cause, establishes exceptional circumstances exist, or if they are not charged with a show cause offence, the unacceptable risk test applies. See Flow Chart 2 from s 16 (below).
Unlike the show cause test, the unacceptable risk test applies to all offences (Part 3, Division 2). After assessing any bail concerns, the bail authority must determine whether the accused is an unacceptable risk (s 19).
If the bail authority is satisfied that the accused person presents an unacceptable risk on the basis of these factors then they must be refused bail (s19(1)).
Failure to Attend Court
Section 79 of the Bail Act 2013 (NSW) describes that a person who, without reasonable excuse, fails to appear before a court in accordance with a bail acknowledgment is guilty of an offence.
The onus falls on the person granted bail to prove reasonable excuse.
If you have further questions or need legal advice to navigate this process please reach out to our experienced team of criminal lawyers.