There are a number of common misconceptions about how bail works and the laws surrounding bail. Bail can be a confusing concept and the law in respect of bail is not always straightforward. In New South Wales the Bail Act 2013 (NSW) (The Act) provides the law in respect of bail.
What is bail?
In the simplest terms, bail allows an accused person to be free (most commonly with the imposition of conditions on their freedom) while their matter proceeds through the criminal justice system. If an accused person is not granted bail they will remain in custody until their criminal law matter is concluded. This could potentially mean that a person who is later found to be innocent, nonetheless spends a significant amount of time in custody. It could also mean that a person who is later sentenced to a non-custodial form of punishment or a shorter term of imprisonment nonetheless spends time in prison that they shouldn’t have.
There is usually no recourse or compensation available to a person who has unnecessarily and unfairly spent time in custody. The time that is spent in custody cannot be used as ‘credit in the bank’ with respect to other offences that may be committed in the future. It simply means that the person has spent time prison that they shouldn’t have. The glaringly obvious fact is that getting bail is extremely important in any circumstance.
Who needs bail?
Not every person who is charged with a criminal offence will need to be given bail. Whether a person requires bail will depend on how the police institute proceedings against the person. An accused person will only require bail if they are arrested. Arrest is not a pre-requisite to being charged and therefore not every person who is charged is arrested. In fact, Police are only able to arrest a person in a limited number of circumstances pursuant to Section 99 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
Who grants bail?
A person can be bailed by a number of bail authorities. In a chronological order bail my be granted by the following bail authorities:
When a person is charged they are first taken to the nearest police station and entered into custody. Every police station has a custody sergeant. The custody sergeant is the police officer who is responsible for dealing with all persons in custody.
Together with the police officer in charge of the investigation, the custody sergeant will decide whether or not to grant an accused person bail and the conditions that attach to the bail. This is commonly referred to as police bail.
2. Local Court
If an accused person is not given police bail, the police must take the accused person to the nearest Local Court as soon as possible, including on weekends. Once an accused is before the Local Court the accused can decide whether or not to apply for bail. If an accused person does not apply for bail, they will remain in custody until they successfully apply for bail on a later date or until there matter is concluded.
The Children’s Court at Parramatta operates as a bail court on the weekends and the Court will hear bail applications for persons who are arrested on the weekend. Our lawyers are available to appear on the weekends. Please contact 1300SILENT (1300-745-368) or 0448 142 113 for emergency legal advice.
3. Supreme Court
If an accused person applies for bail in the Local Court and the application is refused, the accused person then has an automatic right to apply to the Supreme Court of New South Wales for bail. This is a fresh hearing for bail and is heard by a single Judge of the Supreme Court as opposed to a Local Court Magistrate. An accused person can not apply to the Supreme Court unless an application has been refused in the Local Court.
4. Court of Criminal Appeal
If an accused person is refused bail in the Supreme Court a final application may be made to the Court of Criminal Appeal where three Judges of the Supreme Court will hear the application afresh.
How many times can I apply for bail?
A bail application can only be made to the same court once, therefore a court that has already refused a bail application must refuse to hear any further bail applications unless the applicant can satisfy one of the following grounds in accordance with Section 74 of the Act:
a) The applicant was not legally represented when the original bail application was dealt with;
b) Material information relevant to the grant of bail is to be presented in the new application, that was not presented in the original application;
c) There has been a change in circumstances since the previous application;
d) The accused person is a child and the original application was made on the first appearance.
If a bail application is made to the Local Court and refused it is important to consider whether there are grounds to make a further application to the Local Court prior to making an application to the Supreme Court. This is because there is generally a wait time of 6-8 weeks in the Supreme Court whereas an application can usually be made to the Local Court with two days’ notice.
Our lawyers consider all available bail options to ensure that a bail application is made in the most efficient and effective manner. However it is imperative to get the right legal advice the first time, call 1300SILENT (1300-745-368) for free legal advice 24 hours, 7 days a week.
What determines if I will get bail?
There are generally two bail tests which apply, one being more onerous than the other. The two tests are:
- The unacceptable risk test; and
- The show cause test.
All persons who apply for bail are subject to the unacceptable risk test, however not every accused person is subject to the show cause test as the show cause test only applies to certain offences and circumstances.
The unacceptable risk test
The unacceptable risk test is found in Section 17 of the Act. The unacceptable risk test requires a bail authority to assess the following risks before granting a person bail:
Whether the accused person will:
a) Fail to appear at any proceedings for the offence (commonly referred to as risk of flight);
b) Commit a serious offence;
c) Endanger the safety of victims, individuals or the community;
d) Interfere with witnesses or evidence.
Although in most cases there is always one or more of the above risks present, if the court is satisfied that these concerns do not amount to an unacceptable risk then the accused person must be granted bail.
It is important for your legal representative to alleviate the courts concerns through a carefully articulated bail proposal which persuades the court that no unacceptable risks are present. Section 18 of the Act provides an exhaustive list of matters that the court may consider in determining unacceptable risks. Aside from legal arguments, one of the most effective ways of alleviating bail concerns is through the imposition of bail conditions.
What bail conditions can be imposed?
A variety of conditions can be placed on a person’s bail. The conditions imposed will usually depend on the circumstances of offending, the personal circumstances of the accused and the identified risks. Some common bail conditions include the following:
- A condition requiring the accused person to reside at a specified address;
- A curfew condition preventing the accused from leaving the residence between specified times (this can be a matter of hours at night or as onerous as virtual house arrest);
- A condition requiring the accused to report to police on a specified number of days;
- A condition prohibiting the accused from entering certain locations;
- A condition prohibiting the accused from communicating with specified persons;
- A condition forbidding the accused from entering international departure points;
- A condition requiring the accused to hand in his or her passport;
- A condition requiring the deposit of money as a means of surety;
- An alcohol and drug abstinence condition;
- A condition requiring the use of a single mobile phone;
The show cause test
The show cause test is an additional test which only applies in certain circumstances. It is generally considered to be a more difficult test to overcome as it shifts the onus on the accused person to show on the balance of probabilities why his or her detention is not justified. If an accused person is able to satisfy the court that his or her detention is not justified the court is then required to consider whether there are any unacceptable risks as explained above.
When does the show cause test apply?
The show cause test does not apply to offences which are committed by persons who are under the age of 18. However, the test applies to adult offenders in the following circumstances:
a) An offence that is punishable by imprisonment for life;
b) A serious indictable offence which involves:
i) Sexual intercourse with a person under the age of 16 years;
ii) The infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years;
c) A serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm if the accused person has previously been convicted of a serious personal violence offence;
d) Any of the following offences:
i) A serious indictable offence under Part 3 or 3A of the Crimes Act 1900 (NSW) or under the Firearms Act 1996 (NSW) that involves the use of a firearm.
ii) An indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place;
iii) A serious indictable offence under the Firearms Act 1996 (NSW) that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm.
e) Any of the following offences:
i) A serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon;
ii) An indictable offence that involves the unlawful possession of a military-style weapon;
iii) A serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon;
f) An offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act;
g) An offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code;
h) A serious indictable offence that is committed by an accused person:
i) while on bail, or
ii) while on parole.
i) An indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order;
j) A serious indictable offence of attempting to commit an offence mentioned elsewhere in this section;
k) A serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section,
l) A serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under:
i) This Act, or
ii) Part 7 of the Crimes (Administration of Sentences) Act 1999, or
iii) The Criminal Procedure Act 1986 , or
iv) The Crimes (Sentencing Procedure) Act 1999 .
What can constitute cause?
The Act does not provide a list or criteria of what matters can constitute cause, however higher courts have held that applicants are not required to show special or exceptional circumstances and that a number of factors in combination can be relied upon to show cause.
Some examples of what has constituted cause include the following:
- Being young and in custody for the first time;
- Weakness of the prosecution case;
- The likelihood of a full-time custodial sentence;
- Medical reasons;
- That there are no unacceptable risks present;
- Deposit of a surety;
- Exceptional hardship experienced by others;
- Strong familial support;
- The low-level seriousness of offending;
Why should I choose Australian Criminal and Family Lawyers?
Our highly experienced criminal defence lawyers are experts at formulating bail proposals. We appreciate how important it is for a person to get bail and the potential injustice that might be occasioned if a person is refused bail. We fight for our client’s freedom and we leave no stone unturned in doing so. Our familiarity and knowledge of the bail laws and authorities are second to none which means that you can rest assured that you are getting the best criminal law team on your side.