How Does Bail Work in NSW? A Comprehensive Overview of the Bail Application Process

In New South Wales (NSW), bail is a legal process that allows a person charged with a criminal offence to be released from custody while their case is ongoing. The fundamental principle behind bail is the presumption of innocence until proven guilty. This means that a person should not be held in custody unless there are compelling reasons to do so, as outlined in the Bail Act 2013.

What is bail? Understanding Bail in NSW

Bail is the conditional release of a person who has been arrested and charged with a criminal offence. It allows the accused to be released from custody while their case is being heard and determined by the court. The bail conditions can vary depending on the circumstances of the case and the perceived risks associated with releasing the accused, as per the Bail Act.

Who can grant bail in NSW? From Police Bail to Supreme Court Bail Applications

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? Understanding Further Bail Applications

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? The Unacceptable Risk Test and Show Cause Test

In NSW, the Bail Act 2013 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.

Bail Conditions: Ensuring Compliance and Addressing Bail Concerns

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.

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.

What Happens If I Breach My Bail Conditions? Consequences and Penalties for Non-Compliance

Breaching bail conditions is a serious matter with potential consequences. It's crucial to understand what constitutes a breach and the potential repercussions.

What Happens if I Don't Comply With 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:

1. Give notice to the police of your intention to vary your bail conditions.
2. File an application with the court.
3. 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? Appealing Bail Decisions and Supreme Court Bail Applications

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.

What if I'm refused bail?

If your bail application is refused in the Local Court, you have the option to appeal the decision and apply for bail in the Supreme Court of NSW. This is a new bail application and will be heard by a Supreme Court Judge.

Supreme Court Bail Applications: Requirements and Procedures

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.

Appeals Bail in NSW: Applying for Bail Pending an Appeal

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? The Benefits of Experienced Legal Representation

Applying for bail can be a complex and overwhelming process. Seeking legal assistance from an experienced bail lawyer is crucial to ensure the best possible outcome for your application.

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.

If you or someone you know has been charged with a criminal offence in NSW and needs assistance with a bail application, contact our experienced bail application lawyers at Daoud Legal: Sydney Criminal Defence & Traffic Lawyers. We specialise in criminal law and can help you navigate the bail process, ensuring that your rights are protected and your chances of being granted bail are maximised. Call us today for a confidential consultation and let us help you secure your release from custody.

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