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When a loved one is arrested and refused bail, the situation is distressing and urgent. A successful bail application is the most critical step to secure their freedom, and you often only get one chance to get it right.
At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, our expert bail lawyers are available 24/7 to assist with bail applications arising from any criminal offence, including:
- Apprehended Violence Orders (AVO)
- Domestic Violence
- Assault Charges
- Break & Enter
- Drug Offences
- Firearms & Weapons
Understanding a Bail Application
In NSW, bail is the legal process that allows a person charged with a criminal offence to be released from custody while they await their court hearing. It upholds the fundamental principle of being innocent until proven guilty, allowing you to remain in the community rather than in gaol while your criminal law matter proceeds.
After an arrest, police may grant bail at the station. However, if bail is refused, you or your loved one must be brought before a court for a formal bail application. This is a critical hearing, as being refused bail means being held on remand—potentially for many months—until the case is finalised.
The legal framework for bail, governed by the Bail Act 2013 (NSW), is complex. A successful application requires a strategic approach from an experienced criminal lawyer who can navigate the legal tests and present a compelling case for your release. Getting expert legal advice is essential to securing the best possible outcome.
Who can grant bail in NSW?
Several authorities have the power to grant bail in NSW:
- Police: When a person is arrested, the police can decide to grant them “police bail,” allowing them to be released from custody until their court date.
- Local Court: If the police refuse bail, the accused will be brought before the Local Court, where a magistrate can determine whether to grant bail.
- Supreme Court: If bail is refused in the Local Court, the accused can apply for a Supreme Court bail application.
- Court of Criminal Appeal: In exceptional circumstances, a bail application can be made to the Court of Criminal Appeal if it has been refused by the Supreme Court.
How many times can I apply for bail?
Generally, you can only make one bail application in each court. However, there are exceptions to this rule, known as “further grounds for bail.” These grounds include:
- If you were not legally represented during your previous bail application.
- If there is new information or evidence that was not available during the previous application.
- If there has been a significant change in circumstances since the previous application.
- If the accused is a child and the original application was made on their first court appearance.
If you have been refused bail and believe you have further grounds for a bail application, it is crucial to seek legal advice from an experienced criminal lawyer. They can assess your situation and advise you on the best course of action to help you get bail.
What Factors Determine Whether I Get Bail?
n NSW, the Bail Act 2013 (NSW) governs bail applications. The court will assess your bail application based on two main tests: the unacceptable risk test and, in specific cases, the show cause test.
The Unacceptable Risk Test: Assessing Bail Concerns
The unacceptable risk test is the primary consideration in all bail applications. It requires the court to assess whether there is an unacceptable risk that you will:
- Fail to appear in court for future proceedings.
- Commit a serious offence while on bail.
- Endanger the safety of victims, individuals, or the community.
- Interfere with witnesses or evidence.
To assess these risks, the court will consider various factors, including:
- Your background, including your criminal history, community ties, and circumstances.
- The nature and seriousness of the criminal offence.
- The strength of the prosecution’s case.
- Whether you have a history of violence or non-compliance with court orders.
- The potential impact of your detention on your life and well-being.
If the court determines that there is an unacceptable risk, bail will be refused. However, if the court believes that the risks can be mitigated through appropriate bail conditions, bail may be granted.
The Show Cause Test: Demonstrating Why Detention is Not Justified
In addition to the unacceptable risk test, certain serious offences require you to satisfy the show cause test. This test requires you to demonstrate why your continued detention is not justified.
Show cause offences include:
- Offences punishable by life imprisonment (e.g., murder).
- Serious indictable offences involving sexual intercourse with a person under 16 years old.
- Serious personal violence offences if you have prior convictions for similar offences.
- Certain firearms offences.
- Drug offences involving commercial quantities.
- Offences committed while on bail or parole.
If you are charged with a show cause offence, you must provide compelling reasons to the court to justify your release on bail. This may involve presenting evidence of your community ties, employment, family responsibilities, or medical conditions that require treatment outside of custody.
If you fail to show cause, the court must refuse bail. However, if you successfully show cause, the court will then proceed to assess the unacceptable risk test as outlined above.
Bail Conditions
Bail conditions are designed to address the specific bail concerns identified by the court. They are intended to ensure that you comply with the bail requirements and do not pose a risk to the community or the administration of justice.
Some common bail conditions include:
- Residing at a specified address.
- Reporting to the police station regularly.
- Surrendering your passport.
- Abiding by a curfew.
- Not contacting certain people (such as co-accused or witnesses).
- Attending rehabilitation or treatment programs.
- Providing a surety (a sum of money or property) to the court as a guarantee of your compliance with bail.
The court can impose any condition it deems necessary to address the specific risks in your case. These conditions must be reasonable, proportionate to the criminal offence, and no more onerous than necessary.
What Happens If I Breach My Bail Conditions?
If you fail to comply with your bail conditions, the police have several options:
- Take no action.
- Issue a warning.
- Issue a notice requiring you to appear in court.
- Issue a Court Attendance Notice (CAN) if the breach constitutes an offence (e.g., failing to appear in court).
- Arrest you without a warrant and bring you before the court.
- Apply for a warrant for your arrest.
The police’s decision on how to proceed will depend on various factors, including the seriousness of the breach, whether you had a reasonable excuse, and your personal circumstances.
If you are brought before the court for a bail breach, the court will reassess your bail and may decide to:
- Release you again on the same bail conditions.
- Vary your bail conditions or impose additional conditions.
- Revoke your bail and remand you in custody.
What is the Penalty for Breaching Bail?
The penalties for breaching bail can be severe, especially if you fail to appear in court without a reasonable excuse. In such cases, the maximum penalty is the same as the maximum penalty for the criminal offence for which bail was granted, up to a maximum of three years imprisonment and/or a fine of $3,300.
If your bail conditions included a surety (a sum of money or property deposited with the court), the court may also order that the surety be forfeited.
How to Vary Bail Conditions in NSW?
If your circumstances change and you find it difficult to comply with your bail conditions, you can apply to the court to vary them. This is known as a “bail variation.”
To apply for a bail variation, you will need to:
- Give notice to the police of your intention to vary your bail conditions.
- File an application with the court.
- Serve the application on the police.
The court will then consider your application and decide whether to vary your bail conditions. It’s important to seek legal advice from an experienced criminal lawyer if you are considering applying for a bail variation.
What if I’m refused bail?
If your bail application is refused in the Local Court, you generally have one opportunity to appeal the decision in the Supreme Court of NSW. It’s important to note that you typically only have one chance at a Supreme Court bail application, unless there are further grounds for a second application, such as new evidence or a change in circumstances.
Requirements & Processes for a Supreme Court Bail Application
Supreme Court bail applications have specific requirements and procedures that must be followed. All materials that will be relied upon in the application must be filed ahead of time. This includes:
- Affidavits (sworn statements)
- Character references
- Reports from psychologists or psychiatrists
- Medical documents
- Letters of acceptance from rehabilitation facilities (if applicable)
In complex cases, detailed written submissions may also be required.
The Supreme Court will first list the bail application for a “call over” to ensure all requirements have been met. If satisfied, the bail application will be adjourned for a hearing on another date. During the hearing, the judge will hear arguments from both sides and consider all the evidence before deciding whether to grant bail.
Applying for Bail Pending an Appeal of Guilty Conviction
If you are found guilty and sentenced to imprisonment, but you intend to appeal the conviction or sentence, you can apply for “appeals bail.” This allows you to be released on bail while your appeal is being heard.
The court will consider several factors when deciding whether to grant appeals bail, including:
- Whether the appeal has a reasonable prospect of success.
- The likelihood of you serving a significant portion of your sentence before the appeal is heard.
- The potential risks associated with your release.
If appeals bail is granted, you will be released from custody, usually with conditions, until your appeal is finalised. If appeals bail is refused, you will remain in custody while the appeal process continues.
What Happens to Bail Money if Found Guilty?
The refund of your bail money is not affected by whether the accused is found guilty or not guilty in the criminal case. This includes if the charges are dropped.
How Do I Get My Bail Money/Property Back?
If your bail conditions were met and your case has concluded, you are entitled to have your bail money or property returned.
- Money: The court will refund your money as a cheque. To obtain the cheque, you need to go to the court registry where your case was finalized and get a ‘bail refund letter.’ This letter should be sent to the Supreme Court Bails Matter Counter. You can then go to the counter with the original receipt and two forms of identification to receive your cheque.
- Property: If you used property as security, such as a house title deed, the court would have placed a caveat on the property. To get your property back, you need to obtain a ‘bail refund letter’ from the court registry and send it to the Supreme Court Bails Matter Counter. You then need to complete a ‘Withdrawal of Caveat’ form and take it to the counter with two forms of identification. The court will then remove the caveat from your property.
How Can a Lawyer Help With My Bail Application?
A lawyer specialising in bail applications can provide invaluable assistance throughout the process. They can:
- Assess your eligibility for bail: A lawyer will review the charges against you, your criminal history, and other relevant factors to determine your eligibility for bail and the likelihood of success in your application.
- Prepare and file the bail application: Bail applications involve specific forms and procedures that must be followed correctly. A lawyer will ensure that all necessary documents are prepared and filed on time.
- Gather supporting evidence: A lawyer will help you gather evidence to support your bail application, such as character references, employment details, and proof of community ties.
- Negotiate with the prosecution: In some cases, a lawyer can negotiate with the prosecution to agree on bail conditions or even to withdraw opposition to bail altogether.
- Represent you in court: A lawyer will advocate for you in court, presenting your case in the most favourable light and addressing any concerns raised by the prosecution or the court.
- Advise you on your rights and options: A lawyer will explain your rights and options throughout the bail process, ensuring that you understand the legal implications of each decision.
What Should I Do if I Think I Am Going to Be Arrested?
If you anticipate being arrested, it’s crucial to take proactive steps to prepare for a bail application:
- Gather relevant documents: Collect any documents that may be relevant to your bail application, such as identification, proof of address, employment details, and character references.
- Seek legal advice: Consult with an experienced bail lawyer as soon as possible. They can advise you on the bail process, help you gather evidence, and prepare your application in advance.
- Prepare a bail plan: A bail plan outlines the conditions you are willing to abide by if granted bail. This can include where you will live, who you will live with, and any other conditions that may address the court’s concerns.
By taking these steps, you can increase your chances of a successful bail application and minimise the time you spend in custody. Remember, seeking legal assistance is crucial to navigating the complexities of the bail process and protecting your rights.
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FAQs
What is bail?
Bail is the legal authority for a person charged with a criminal offence to be released from custody and remain in the community while their case is finalised. It is essentially a promise to attend court when required.
Who can grant bail in NSW?
A bail decision can be made by a senior police officer (sergeant or above) at the police station after a person is charged, or by a court, such as a Local Court Magistrate or a Supreme Court Judge.
What happens if the police refuse bail?
If police refuse bail, the accused person must be brought before a court as soon as practicable, which is usually the same day or the following morning. This provides the first and most critical opportunity to make a formal bail application to a Magistrate.
How does a court decide whether to grant bail?
The court must assess whether there is an ‘unacceptable risk’ that if the person is released, they will fail to appear at court, commit a serious offence, endanger the safety of the community, or interfere with witnesses or evidence.
What factors does the court consider when assessing risk?
The court considers many factors listed in the Bail Act 2013 (NSW), including the person’s background and community ties, the seriousness of the offence, the strength of the prosecution case, and any criminal history.
What is a 'show cause' offence?
For certain very serious offences, the law requires the accused person to first ‘show cause’ why their detention is not justified. This is an extra hurdle that must be overcome before the court will even consider the ‘unacceptable risk’ test.
What types of offences require me to 'show cause'?
Show cause offences include those punishable by life imprisonment (like murder), certain serious drug supply, firearm, and sexual offences, and any serious indictable offence allegedly committed while already on bail or parole.
How can I 'show cause' that my detention is not justified?
A combination of factors can be used to show cause. At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, we build a strong case by highlighting factors like a weak prosecution case, significant health issues that can’t be treated in custody, or lengthy delays before a trial.
What are bail conditions?
Bail conditions are specific rules a person must follow if they are granted bail. They are imposed by the court to mitigate any identified ‘bail concerns’ and ensure the person complies with their obligations while in the community.
What are some common examples of bail conditions?
Common conditions include residing at a specific address, reporting to a police station regularly, abiding by a curfew, surrendering your passport, not contacting witnesses, and having a person agree to forfeit money (a surety) if you fail to appear in court.
What is a surety in a bail application?
A surety is where an ‘acceptable person’ (someone with no criminal record who knows you) agrees to forfeit a specified amount of money to the court if you fail to attend your court dates. It is a way of addressing the court’s concern that you might not appear.
My bail application was refused in the Local Court. What can I do now?
If bail is refused in the Local Court, you generally have one opportunity to make a new bail application to the Supreme Court of NSW. This is a more formal and complex process that requires meticulous preparation by an experienced bail lawyer.
How many times can I apply for bail?
You generally only get one chance to apply for bail in the same court unless specific circumstances apply, such as having new and relevant information that wasn’t available before. This makes it critical to present the strongest possible case on the first application.
What is a Supreme Court bail application?
A Supreme Court bail application is a formal request for bail made to the state’s highest court after being refused in a lower court. It requires detailed written submissions and supporting documents to be filed, and the legal arguments are more complex.
What happens if I breach my bail conditions?
Breaching a bail condition can have serious consequences. Police may issue a warning, require you to attend court, or arrest you and make a detention application to have your bail revoked, which would place you back in custody.
Can my bail conditions be changed?
Yes. If your circumstances change (e.g., you move house or get a new job), our lawyers can file a ‘bail variation’ application with the court to have your conditions altered to be more manageable, while still addressing the court’s original concerns.
What if I'm arrested on a weekend?
If you are arrested and refused police bail on a weekend or public holiday, you will be brought before the Parramatta Bail Court. Our expert lawyers are available 24/7 for urgent representation at these weekend bail application hearings.
How long does bail last?
Bail lasts for the entire duration of your criminal law matter, until the case is finalised. You must comply with your conditions throughout this period, which can sometimes take many months or even years.
Why is an experienced bail lawyer so important?
The bail laws in NSW are complex, and you often only get one opportunity to make an application. An experienced bail lawyer from Daoud Legal: Sydney Criminal Defence & Traffic Lawyers understands how to navigate the ‘show cause’ and ‘unacceptable risk’ tests, gather the right evidence, and present the most persuasive case to maximise your chances of being released.
How can Daoud Legal: Sydney Criminal Defence & Traffic Lawyers help with an urgent bail application?
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