When a person is charged with a criminal offence in New South Wales (NSW), they may be taken into custody. In many cases, the accused has the right to apply for bail, allowing them to remain in the community while awaiting trial or court hearings. The process of applying for bail can be complex, and the outcome significantly impacts the accused’s immediate future.
Key Takeaways:
- Bail in NSW allows a person charged with a crime to remain out of custody while awaiting court proceedings.
- The process involves submitting a bail application and attending a bail hearing before a magistrate or judge.
- Courts consider factors such as flight risk, community safety, and the nature of the alleged offence.
- Bail conditions may be imposed to mitigate risk factors, including curfews or sureties.
- Legal representation is crucial to improve the chances of a successful bail application.
What is Bail?
Bail is a legal arrangement that allows an individual charged with a criminal offence to remain free, subject to specific conditions, until their court appearance. In NSW, the law governing bail is the Bail Act 2013 (NSW), which outlines how bail decisions are made, including the criteria for granting bail and the factors that courts must consider.
When bail is granted, the accused agrees to abide by certain conditions set by the court. If the accused breaches these conditions, bail can be revoked, and the person may be taken back into custody.
When Can You Apply for Bail?
You can apply for bail at several stages of the criminal process:
- Immediately after arrest (at the police station)
- During the first court appearance
- At any subsequent court hearing (if bail was previously denied)
If the police refuse bail at the police station, the accused must be brought before a court as soon as practicable for a bail hearing, as required under the Bail Act 2013 (NSW).
The Bail Application Process
Police Bail
When someone is arrested, the police have the authority to grant or refuse bail under the Bail Act 2013 (NSW). If granted, the person may be released from custody immediately under certain conditions.
Court Bail
If police deny bail, the next step is to apply for bail in court. A bail hearing will be scheduled, where a magistrate or judge will consider whether to grant bail and under what conditions.
The Bail Hearing
During the hearing, both the defence and prosecution present their arguments. The court will consider several factors before making a decision, including:
- The seriousness of the alleged offence
- The strength of the prosecution case
- The likelihood of a full-time custodial sentence if the accused is found guilty
- The accused’s criminal history
- The risk of the accused failing to appear in court
- The potential danger to the community
- The likelihood of the accused interfering with witnesses or evidence
The court must balance the need for community safety with the accused’s right to liberty until proven guilty.
Factors the Court Considers When Granting Bail
Show Cause Requirement
Under Sections 16A and 16B of the Bail Act 2013 (NSW), for certain serious offences, the accused must “show cause” why their continued detention is not justified. This creates a presumption that an accused will not released until they demonstrate why they should be released. This applies to charges such as:
- Murder
- Child sexual assault
- Certain firearms offences
- Large-scale drug trafficking
- Serious domestic violence offences
- A serious indictable offence allegedly committed while already on bail or parole
Unacceptable Risk Test
Under Sections 17 to 20A of the Bail Act 2013 (NSW), the court uses the “unacceptable risk” test to determine if releasing the accused, the accused will:
- Abscone or fail to attend court
- Commit a serious offence
- Endanger the safety of victims, individuals or others in the community.
- Interfere with witnesses or evidence
Community Safety and Victim Protection
The court prioritises public safety and victim protection when assessing bail applications. If there is substantial evidence suggesting that the accused may harm others if released, bail may be denied in the interest of protecting the community and potential victims.
Common Bail Conditions
If bail is granted, the court may impose conditions to mitigate risks and ensure compliance with legal requirements. Common bail conditions include:
- Regular reporting to the police
- Surrendering passports or travel documents
- Adhering to curfews
- No contact with certain individuals (e.g., witnesses or victims)
- Abstaining from drugs or alcohol
- Providing a financial surety or bond
Failure to comply with any of these conditions can result in the revocation of bail or the imposition of additional charges for breaching bail.
What Happens if Bail is Denied?
If bail is refused, the accused will remain in custody until their next court appearance or trial. In some cases, a new bail application can be made if there are changes in circumstances or new evidence becomes available.
If an accused is refused bail in the Local Court, the accused also has the right to make a bail application to the Supreme Court of NSW.
How a Lawyer Can Help with a Bail Application
Having an experienced criminal lawyer significantly increases the chances of securing bail. A lawyer can:
- Prepare the necessary legal documents and arguments
- Present a compelling case at the bail hearing
- Negotiate reasonable bail conditions
- Advise on the likelihood of success and the appropriate next steps if bail is refused
A lawyer understands the specific criteria the court must consider and can tailor the application to address those factors effectively.
Tips for a Successful Bail Application
Be prepared: Collect evidence of community ties, employment, or family responsibilities to demonstrate that you are not a flight risk.
- Secure sureties: A person willing to provide a financial guarantee can strengthen the application.
- Demonstrate stability: Provide evidence of a fixed address, employment, or family obligations that show you are unlikely to flee.
- Address community concerns: Offer solutions to mitigate risks, such as agreeing to curfews or regular check-ins with the police.
Conclusion
Applying for bail in NSW can be a complex and legally challenging process. Understanding the steps involved, as well as the relevant provisions of the Bail Act 2013 (NSW), can help ensure you prepare a strong and compelling case. Courts must weigh the accused’s right to liberty against the need to protect the community, making it essential to approach the bail process strategically.
If someone you know has been denied bail by the police or requires expert legal advice for a bail application, contact our team of experienced bail lawyers today for assistance.
