1 July 2021

What is Bail? – A Guide to Bail in NSW

What is bail?

Bail refers to the release of a person who is accused of an offence, from jail, pending the outcome of their case.

Their release from jail is on the condition that the person attends court when required, and usually subject to other specific conditions.

 

Who can grant bail?

If someone is charged with a criminal offence, police may arrest them and take them to the police station to be charged. As soon as possible after charging a person, police must make a bail decision. They may release a person without bail, release the person on bail and impose conditions, or refuse to grant bail.

If police refuse to grant bail or a person is not released on bail, they must be brought before a court as soon as practicable and given the opportunity to make an application for bail..

If a person is arrested on a weekend, or another day when Court’s don’t usually sit, an arrested person will be bought before a Registrar of a court to make an application for bail.

A Magistrate or Registrar can release an offender without bail, grant bail with conditions or refuse bail.

 

Will I get bail?

There are two steps to be considered when determining whether an accused person should get bail.

 

Step one

In certain circumstances, an accused person must ‘show cause’ why their detention is not justified. This requirement applies in a range of circumstances, including:

  • Offences punishable by life imprisonment
  • Certain sexual offences
  • Certain personal violence offences
  • Certain offences involving firearms or other weapons
  • Certain drug offences
  • Serious offences that are committed while an accused person is already on bail or parole

 

Terrorism offences:

If an accused person has been charged with certain terrorism offences, bail will only be granted where there are ‘exceptional circumstances’ that exist to justify the grant of bail.

If a person is unable to demonstrate why their detention is not justified, or unable to demonstrate ‘exceptional circumstances’ that person must be refused bail. If they do show cause or demonstrate exceptional circumstances, the court must consider step two.

 

Step two

The court must then consider whether the accused person presents an unacceptable risk of:

  • Failing to appear at court
  • Committing a serious offence
  • Endangering the safety of victims, individuals or the community
  • Interfering with witnesses or evidence

If the court is satisfied that there is an unacceptable risk, after considering all the bail concerns, then the court will refuse bail.

If the court is not satisfied the accused person presents an unacceptable risk, or that there are conditions that can be imposed to mitigate bail concerns, the person must be released on bail.

 

What conditions can be imposed on me?

A court can impose bail conditions to mitigate any of the bail concerns identified. These conditions must be reasonably necessary and proportionate to the concerns. They cannot be too onerous or impracticable to comply with.

Common bail conditions can include:

  • A residence condition – that requires a person to live at a specific address.
  • Reporting to the Police Station as often as deemed necessary.
  • Not to take drugs or drink alcohol.
  • To comply with a curfew condition, or a condition not to leave the house unless in the company of named people.
  • Not to associate with or contact certain people.
  • Not to enter, or go near, certain areas and locations.
  • To undertake rehabilitation or other treatment.
  • To surrender a passport.
  • For the accused person, or another acceptable person to provide a surety (depositing, or agreeing to deposit, money with the court to ensure attendance at court)
  • Enforcement conditions, which allow police to check whether an accused person is complying with their bail conditions. This includes presenting at the door of their residence when police attend or complying with drug or alcohol testing.

 

What happens if I am refused bail in the Local Court?

If someone is refused bail in the Local Court there are two options to make a further bail application. Firstly, a further bail application can be made in the Local Court, but only if there has been a change in circumstances since the previous application. These circumstances can include:

  • Where the person did not have a legal representative when they last made a bail application
  • Where there is new material relevant to the grant of bail
  • Where circumstances relevant to the grant of bail have changed

Secondly, a bail application can be made to the Supreme Court. This does not require a change in circumstances to be shown.

 

Can my bail conditions be changed?

Courts have the power to vary or change bail conditions. To have your bail conditions changed, an application needs to be made to the Court that imposed the bail conditions. An accused person, or their legal representative, will need to attend court and provide reasons as to why the Court should change the conditions. Any documentation that supports changing the conditions should also be presented to the Court.

 

What happens if I breach my bail?

If bail conditions are breached, police officers have discretion as to what action to take. Where a police officer believes on reasonable grounds, that a person has failed or is about to fail, to comply with a bail condition or acknowledgement, a police officer may:

  • Take no action
  • Warn the person
  • Arrest the person and bring them before a court, to make an application for them to be detained in jail pending the outcome of their case.

 

When will my bail end?

Bail will end when the case before the court is finalised. For example, when a person is convicted and sentenced, or the charge is withdrawn. Once the case is finalised, an accused person no longer has to comply with the conditions imposed on them as part of bail.

If you have provided a surety in relation to bail, once bail ends, you are entitled to get this surety back. This is as long as the accused person has complied with their bail conditions. You can contact the Court Registry or police station where the surety was deposited to do so.

 

 

Our solicitors regularly appear in the Local and Supreme Court for bail applications. If you or someone you know requires representation or advice in relation to an application for bail, you can book an appointment with one of our expert criminal lawyers here.


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