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A guide to bail

What is bail? A complete guide to bail in NSW

There are a number of common misconceptions about how bail works and the laws surrounding bail. Most people have no need to know anything about bail until they or someone they know is arrested by the Police.

Being arrested is a very stressful experience. Most people who have never had contact with the criminal justice system have no idea what to do.  Click here to find out the 5 most important things that you have to know about arrest.

We have a  free legal advice hotline that operates 24 hours a day, 7 days a week, to give arrested persons urgent legal advice. Get in touch with one of our Sydney Criminal Lawyers immediately by calling  1300SILENT (1300-745-368) or continue reading to find out everything that you need to know about bails laws in NSW.

Bail in NSW

What is bail?

In simple terms, bail allows an accused person to be free while their legal matter proceeds through the criminal justice system. If a person is not granted bail, they will remain in prison until their criminal law matter ends. This could potentially mean that a person who is later found to be innocent, nonetheless, spends time in prison.

It could also mean that a person, who is ultimately not given a prison sentence or a shorter term of imprisonment, nonetheless spends time in prison that they shouldn’t have.

If a person does spend time in prison unnecessarily, there is usually no compensation available to them.  It usually just means: tough luck. Therefore, getting bail is extremely important.


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 begin the criminal proceedings against them. An accused person will only require bail if they are arrested.

Arrest is not always necessary so that a person can be charged. Therefore, not every person who is charged is arrested. In fact, the 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).

As opposed to arresting a person, the Police can serve court documents on them.


Who grants bail?

A person can be given bail in a number of different ways. In a chronological order, bail may be granted by the following “bail authorities”:


1. Police

When a person is arrested, they have to be taken to the nearest police station and entered into custody. Every police station has an officer known as a “Custody Sergeant”. The Custody Sergeant is the police officer who is responsible for dealing with persons who have been arrested.

The Custody Sergeant, together with the investigating police, will decide whether or not to grant an arrested person bail and the conditions of their bail. This is known as “police bail”.


2. Local Court

If an arrested person is not given police bail, the police must then take the arrested person to the nearest Local Court as soon as possible. This includes weekends and holidays. Once an arrested person is at the Local Court, they can decide whether or not to apply for bail.

If the arrested person does not apply for bail, they will then be taken to prison where they will remain until they successfully apply for bail on a later date or until their legal matter is concluded.

If a person is arrested on a weekend or during a holiday period, they will appear at the Children’s Court at Parramatta where they can apply for bail. Our Sydney Criminal Lawyers are available to apply for bail on weekends and all public holidays. Please contact 1300SILENT (1300-745-368) or 0448 142 113 for emergency legal advice.


3. Supreme Court

If a person applies for bail in the Local Court and their application is refused, they then have an automatic right to apply to the Supreme Court of New South Wales for bail. This is a completely new bail application and it is heard by a single Judge of the Supreme Court as opposed to a Local Court Magistrate.

A person can only apply to the Supreme Court for bail after they have been refused bail in the Local Court.


4. Court of Criminal Appeal

If a person is refused bail in the Supreme Court, a final application may be made to the Court of Criminal Appeal.  Three Judges of the Supreme Court will hear the application afresh and make a determination.


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 person bail must refuse to hear any further application by that person, unless the person can satisfy one of the grounds Section 74 of the Act:

  1. If the accused person was not legally represented when the original application was made;
  2. If fresh material information relevant to bail is to be presented in the new bail application that was not presented in the original application;
  3. If there has been a change in circumstances since the previous application;
  4. If the accused person is a child and the original application was made on the child’s first court 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 within two days’ notice.

Our lawyers consider all available 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:

  1. The unacceptable risk test, and
  2. The show cause test.

All persons who apply for bail are subject to the unacceptable risk test, however, not every person is subject to the show cause test. The show cause test only applies to certain offences and circumstances. We discuss both tests below.


The unacceptable risk test

The unacceptable risk test is found in Section 17 of the Act. The unacceptable risk test requires the consideration of the following risks before granting a person bail:

  1. Whether the person will fail to appear at court or leave the jurisdiction (this is commonly referred to as “risk of flight”);
  2. Whether there is a risk that the person will commit a serious offence if they are free;
  3. Whether the person will endanger the safety of victims, individuals or the community;
  4. Whether the person will interfere with witnesses or evidence.

In most cases, there is always one or more of the above risks present. However the fact that a risk is present is not a good enough reason to refuse a person bail. To refuse a person bail, the prosecution must satisfy that the risk amounts to an “unacceptable risk”.

These risks can be mitigated by proposing bail conditions. For example, if a Court considered that a person is a “flight risk”, that risk can be mitigated by the person handing in their passport to the police and depositing a sum of money with court as security.

It is important for your legal representative to alleviate the Court’s concerns through a carefully articulated bail proposal which persuades the Court that no unacceptable risks are present. We consider some of the more common bail conditions below.


What bail conditions can be imposed?

A variety of conditions can be placed on a person’s before a court grants them bail. The conditions imposed will usually depend on the circumstances of offending, the personal circumstances of the person and the identified risks. Some common bail conditions include the following:

  • A condition requiring the person to reside at a specific address;
  • A curfew condition preventing the person from leaving their home between specified times (this can be a matter of hours at night or virtual house arrest);
  • A condition requiring the person to report to police on a specified number of days;
  • A condition prohibiting the person from attending certain locations, including entire suburbs;
  • A condition prohibiting the person from communicating with certain persons;
  • A condition forbidding the person from entering international departure points;
  • A condition requiring the person to hand in his or her passport;
  • A condition requiring someone to deposit money as a means of security;
  • An alcohol and drug abstinence condition;
  • A condition requiring the use of a single mobile phone;

There are many other conditions that can be imposed. It is important for your lawyer to identify what conditions are necessary in the circumstances.


The show cause test

The show cause test is an additional test to the “unacceptable risk”. However, the show cause test only applies in certain circumstances.

The show cause test is generally considered to be a more difficult test to overcome. This is because, unlike the “unacceptable risk test”, it requires the arrested person to show the court why his or her detention is not justified.

If an arrested person is able to satisfy the Court that his or her detention is not justified, the Court is then required to consider the “unacceptable risks test” as explained above.


When does the show cause test apply?

The show cause test does not apply to persons who are under the age of 18. However, the test applies to adults in the following circumstances:

a) If they are charged with an offence that is punishable by imprisonment for life, such as murder;

b) A serious indictable offence which involves:

i) Sexual intercourse with a person under the age of 16 years; or

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 .


Your lawyer will identify whether the show cause test applies.


How can someone “show cause” in bail?

The Bail Act does not provide a list or criteria of what constitutes cause. However the courts have determined that to show cause, a person is not required to show special or exceptional circumstances. A person can also rely on a number of factors in combination to show cause. For example, the need to work and look after an ill parent.

Some examples of what has constituted cause in past cases include the following:

  • Being young and in custody for the first time;
  • A weak prosecution case;
  • The unlikelihood of a prison sentence;
  • Medical reasons;
  • That fact the person is not unacceptable risks;
  • The deposit of a large amount of money;
  • Exceptional hardship experienced by others (for e.g. family members);
  • Strong familial support;
  • The low-level seriousness of offending;
  • Delay in the matter proceeding;
  • Attendance at a drug rehabilitation.

It is important to identify and set out clearly all the matters that a person is relying on to show cause prior to applying for bail.


What to do if someone has been arrested?

If someone has been arrested, obtaining legal advice immediately is crucial to whether or not the person gets bail. Our highly experienced Sydney Criminal lawyers are experts at formulating bail applications.

We appreciate how important it is for a person to get bail and the potential injustice that might occur if a person is refused bail. We fight for our client’s freedoms at all costs. Our familiarity and knowledge of the bail laws are second to none, which means that you can rest assured, that you are getting Sydney’s Best Criminal Law team on your side.

Our Sydney Criminal lawyers are ready to take calls 24 hours, 7 days a week. Call us now on 1300SILENT (1300-745-368) or alternatively 0448 142 113 to get immediate legal advice.