A GUIDE TO BAIL IN NSW
How to get bail
Bail applications require careful preparation and supporting documentation such as:
- A letter from an employer confirming that the accused will have a job if released;
- Letters from family and friends who will support the accused and help supervise the bail conditions;
- Evidence that the accused has responsibilities such as the care of children;
- A letter from a person who agrees to forfeit money if the accused does not attend court;
- A report from a doctor or psychiatrist as to the accused’s vulnerabilities and putting in place a treatment plan upon release;
It is rarely advisable to put exculpatory evidence before the court as doing so may compromise the accused’s defence in any subsequent trial.
Proposed bail conditions should be prepared addressing the concerns the court is likely to have. It is better to propose conditions that are on the stricter side. Conditions can usually be relaxed later if needs be.
The defence should meet with the prosecutor before the application to see if the prosecutor can be persuaded to change his or her mind and support bail, or at least identify their reasons for opposing bail so that the application can be refined.
What is bail?
If bail is granted it means that the person charged with a criminal offence (the accused) has been released from custody until their charges are finalised. Bail is usually granted with conditions such as where the accused may live and who they may associate with. If the bail conditions are breached the accused can be returned to custody.
Will I get bail?
The bail authority takes into account many factors when determining whether to grant bail. The most important factors are:
- The seriousness of the charge;
- The strength of the prosecution case;
- The risk to members of the community;
- The criminal record of the accused;
- The vulnerabilities of the accused; and
- The support that the accused has in the community.
Section 18 of the Bail Act 2013 (NSW) lists all the matters the court must take into account in deciding whether to grant bail.
If police refuse to grant bail, they must bring the accused before a court as soon as possible so that the court can decide whether to grant bail. This usually occurs the same day, however if an accused is charged after 3 pm they will usually be held in custody overnight. Accordingly, if you are intending to surrender to police you should do so in the morning so that there is time for the court to hear a bail application the same day.
What is “security” or “surety”?
Security or surety is a condition of bail whereby a friend or family member agrees to forfeit money if the accused does not attend court. Security may be in the form of a signed agreement, a cash deposit, or where large sums of money are required, granting an interest over a property.
Can I make multiple bail applications?
An accused can make multiple bail applications, but only in certain circumstances such as:
- If the accused was self-represented;
- If bail was refused by a Registrar;
- On appeal to the Supreme Court; or
- If there has been a change in circumstances or fresh evidence that was not presented to the Court in the previous bail application.
What bail conditions will the Court impose?
Bail conditions commonly include:
- A place of residence – usually away from the location of the alleged offence and alleged victims or accomplices;
- A curfew;
- Security – the deposit of money with the court by a friend or family member which will be forfeited if the accused does not appear at court;
- The surrendering of any passport;
- Place restrictions;
- Contact restrictions;
- Restrictions on the use of technology;
- Regular reporting to a police station;
- Attendance on rehabilitation.
What does “show cause” mean?
Some more serious offences are called “show cause offences”. If an offence is a “show cause” offence, then bail will only be granted if the applicant for bail persuades the court that there is a particular reason why their detention is not justified: s 16A Bail Act 2013 (NSW)
A person may be able to “show cause” why their detention is not justified based on:
- The weakness of the prosecution case;
- The need to be released to properly prepare a defence;
- The need for medical or mental health treatment;
- Personal responsibilities such as to children; or
- A combination of factors.
Which offences are “show cause” offences?
Show cause offences include:
- An offence that is punishable by imprisonment for life;
- A serious indictable offence that involves sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years;
- 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;
- 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;
- A serious indictable offence that is committed by an accused person while on bail or while on parole;
- A drug offence that involves a commercial quantity;
- An indictable offence, or an offence of failing to comply with a supervision order, committed while subject to a supervision order.
Strategy: When to apply for bail
Because an accused person cannot make unlimited bail applications, it is important to be strategic about when to make a bail application. In most cases the right time to apply for bail is as soon as, but not before, the application is properly prepared with supporting documentation.
However, if the accused is to appear before a Registrar instead of a Magistrate, the accused will be entitled to make a second application, so there is less harm in making an application even if it is not fully prepared.
In cases where the accused knows they will ultimately be sentenced to some period of imprisonment it may be in their interests to delay their bail application for a period of months. If they are subsequently released on bail and make good progress while at liberty, the court that sentences the accused (now an offender) may decide that they have served a sufficient period and that it is undesirable to undermine that progress by returning them to custody.
Another matter to consider is whether the evidence against the accused is likely to get stronger, or weaker over time. Stronger evidence makes bail less likely and so if an unfavourable piece of evidence is expected then it may be wise to bring forward a bail application.
Can I vary my bail conditions?
Yes, bail conditions can be varied. A variation application should be filed with the court and served on the prosecution. Variations can commonly be negotiated with the prosecution reducing costs and delay.
What happens if I breach my bail conditions?
If a person breaches their bail conditions bail may be revoked and sometimes police will lay additional criminal charges.
I think I am going to be arrested. What should I do?