Bail in NSW

Facing the prospect of being placed in prison awaiting trial or sentence is a frightening thought faced by any accused person detained by police following their arrest. This article examines the law and procedure regarding bail decisions and bail applications in the Local Court of NSW.

What is Bail?

Under Section 7 of the Bail Act 2013 (NSW), bail is ‘authority to be at liberty for an offence.’ In simple terms, bail allows an accused person to be free in the community while their legal matters proceed through the justice system, rather than being kept in prison awaiting trial or sentence. An accused person will only require bail if they have been arrested and charged with a criminal offence, although not all offences (such as minor offences) require a bail determination to be made.

Who makes Bail Decisions?

Under Section 8 of the Bail Act 2013 (NSW), when a person is accused of an offence, a bail decision can be made as to that person’s liberty. The decision can be:

1. To release the person without bail for the offence;
2. To dispense with bail for the offence;
3. To grant bail for the offence (with or without the imposition of bail conditions); or
4. To refuse bail for the offence.

A bail decision is made by a bail authority meaning a Police Officer, an Authorised Justice or a court. Only a Police Officer has the power to a release an accused person without bail for an offence.

When a person is arrested and taken to a Police Station to be entered into custody, the Custody Manager or Sergeant from that Police Station, together with the investigating Officer in Charge of the matter will decide whether or not to grant an accused person ‘police bail’. They can do so with the addition of bail conditions, or they can refuse bail. This decision is normally based on the seriousness of the alleged offence as well as any apparent bail concerns. Some offences will trigger a ‘Show Cause’ event whereby bail will be refused and a court will not grant bail unless it can be demonstrated that an accused’s detention is not justified.

What is a Bail Concern?

Under Section 17 of the Bail Act 2013 (NSW), a ‘bail concern’ is a concern that if an accused person is granted bail, they will:

1. Fail to appear at any future Court proceedings, or
2. Commit a serious offence, or
3. Endanger the safety of victims, individuals or the community, or
4. Interfere with witnesses or evidence.

What is the ‘Show Cause’ requirement in relation to Bail Applications?

If an accused person has been charged with a ‘serious offence’ categorised in Section 16B of the Bail Act 2013 (NSW), the Court must refuse bail unless the accused person can ‘show cause’ as to why their detention is not justified. Only once cause is shown can the court consider bail under the unacceptable risk test.

Unfortunately, the Bail Act provides little guidance as to what will satisfy the ‘show cause’ requirement. However, the courts have determined that an accused person is not required to show special or exceptional circumstances and can rely on a combination of factors to show cause.

Examples of relevant factors can include:

• Excessive Delay in the length of time a matter is likely to take to reach trial;
• First time in custody;
• Health Issues that cannot be treated in custody;
• A weak prosecution case.

Bail Applications at the NSW Local Court

If an accused person is refused ‘police bail’, they are taken to the nearest Local Court as soon as practicable, whereby they are given an opportunity to make a bail application before the court. In determining whether to grant an accused person bail, the court must determine firstly whether an offence triggers a ‘show cause’ event. If a ‘show cause’ event is triggered, the first consideration by a court will be whether an accused person can ‘show cause’ as to why their detention is not justified. Should a ‘show cause’ event either not apply, or be overcome, the court then needs to consider whether there are any bail concerns present. If the court is satisfied that there is an unacceptable risk that the accused person will commit any of these bail concerns, and that there are insufficient bail conditions which would overcome such concerns, the court must refuse bail. This is known as the ‘Unacceptable Risk’ test. Section 16 of the Bail Act 2013 (NSW) contains a flow chart regarding the operation of these key features of bail determinations.

What Factors are Considered on Bail?

When assessing bail concerns, a court must consider the following matters and the following matters only:

1. The accused person’s background (criminal history, circumstances and community ties),
2. The nature and seriousness of the offence,
3. The strength of the prosecution case,
4. Whether the accused person has a history of violence,
5. Whether the accused person has previously committed a serious offence while on bail,
6. Whether the accused person has a history of compliance or non-compliance with court orders, (including previous bail conditions, apprehended violence orders, home detention orders, parole orders, intensive corrections orders or other court orders),
7. Any warnings issued to the accused person regarding non-compliance with bail acknowledgements or conditions,
8. Whether the accused person has any criminal associations,
9. The length of time the accused person is likely to spend in custody if bail is refused,
10. The likelihood of a custodial sentence being imposed if the accused person is convicted of the offence alleged,
11. If the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,
12. 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,
13. Any special vulnerability or needs the accused person may have including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
14. The accused person’s need to be free to prepare for his or her appearance in court or to obtain legal advice,
15. The accused person’s need to be free for any other lawful reason,
16. The accused person’s conduct towards any victim of the offence, or any family member of a victim, after the offence,
17. In the case of a serious offence, the views of any victim of the offence or any family member of a victim, 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,
18. The bail conditions that could reasonably be imposed to address any bail concerns,
19. Whether the accused person has any associations with a terrorist organisation,
20. Whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism,
21. Whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

If the court is satisfied that there are any ‘bail concerns’, then they must then assess whether any bail conditions can be put in place which would mitigate those concerns. If the Court finds that no bail conditions would mitigate against one or more bail concerns, then they will find that there is an ‘unacceptable risk’ and will refuse a bail application.

What are Bail Conditions?

When assessing the ‘Unacceptable risk’ test, a court must consider whether any bail concerns can be mitigated by bail conditions. The conditions imposed will depend on the circumstances of the accused person, the offending and the identified bail concerns relevant to that accused person.

Some common bail conditions that are imposed on an accused person can be:

• A residence condition- to reside at a particular address;
• A curfew condition- To prevent an accused person from leaving their home between specified times;
• A reporting condition- To order an accused person to report to a Police Station on a specified number of days;
• A non-association condition- To prohibit communication with certain persons;
• An exclusion condition- To prohibit the attendance at certain locations, suburbs etc;
• A non-travel condition- To prohibit an accused person from entering international departure points or to surrender his or her passport.
• An abstinence condition- To refrain from alcohol or drugs.
• A security requirement- A requirement that an accused person or other acceptable person enter into an agreement by which the person forfeits a specified amount of money if the person granted bail fails to appear before a Court in accordance with that person’s bail acknowledgement.
• A character acknowledgement- An acknowledgement given by an acceptable person to the effect that he or she is acquainted with the accused person and that he or she regards the accused person as a responsible person who is likely to comply with his or her bail acknowledgement.

Is there a Minimum Amount Required for a Bail Surety or Security?

One bail condition that can be placed on an accused person is a security requirement whereby an accused person or other acceptable person enter into an agreement by which the person forfeits a specified amount of money if the person granted bail fails to appear before a court in accordance with that person’s bail acknowledgement.

This is not a preconceived amount and can depend on the nature and seriousness of the charges as well as the bail concerns relevant to the accused person. The person who acts as the ‘surety’ for the bail application must be an acceptable person. An acceptable person must have no criminal convictions, no pending criminal charges or have been subject to bankruptcy proceedings. They must also have known the accused for an extended period of time.

What Happens if an Accused Person Breaches Bail?

If an accused person breaches bail conditions, they can be arrested for a breach of bail and brought before the court. The court can take no action and release the accused person, impose further bail conditions or revoke bail.

What Happens if an Accused Person is Refused bail?

If an accused person is refused bail in the Local Court, they cannot make another bail application in the Local Court unless they satisfy one of the grounds pursuant to Section 74 of the Bail Act 2013 (NSW), being:

1. If they were not legally represented when the original application was made and now have legal representation; or
2. If material information relevant to bail is to be presented in the new bail application that was not presented in the original application; or
3. If there has been a change in circumstances since the previous application; or
4. If the accused person is a child and the original application was made on the child’s first court appearance.

If an accused person does not satisfy one of the grounds listed in Section 74, they can make an application to the Supreme Court for bail. There is normally at least a month wait for a matter to be heard in the Supreme Court. Supreme Court bail applications have stringent requirements and all supporting material must be filed ahead of the application being heard.

Why Choose Australian Lawyers and Advocates?

Being arrested and refused bail, ending up in prison is a serious situation. It is therefore important that you consult with an experienced criminal defence lawyer as soon as possible after you have been arrested or contacted by the Police in respect of an offence. Many law firms claim to be ‘the best’ or ‘leading’ firms. At Australian Lawyers and Advocates, we let our results, reputation and high level of client service and satisfaction speak for themselves. Our team of lawyers are highly experienced, highly skilled and respected advocates.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been arrested or charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law or traffic law matters further.