Bail Lawyers in NSW are legal professionals who specialize in helping individuals secure their release from custody while awaiting trial. They provide legal guidance, representation, and advocacy to clients who are seeking bail or appealing a bail decision.
Being arrested can be extremely stressful, and many people have no experience dealing with the criminal justice system or know how bail works in NSW. Find out more about bail laws in New South Wales, conditions that may be imposed, how bail is granted and how many times you can make a bail application. Let’s take a closer look.
What Is Bail?
When a person gets accused of a crime, it takes time for their legal matter to proceed through the criminal justice system. If the accused person is arrested and then granted police bail, they can be released back into the community whilst their criminal matter concludes. This is particularly beneficial if they are later found to be innocent, as they will not spend time in prison unnecessarily.
When a person is not granted bail, they will spend time in prison pending the outcome of their court proceedings.
Who Grants Bail?
The people who can grant bail are called “bail authorities”, and depending on the accused person’s circumstances, and when they are arrested, their options of where to make their bail application will vary.
When a person gets arrested, they are taken to a local police station and are taken into custody. A custody sergeant deals with people who have been arrested and will decide, together with investigating police, whether or not to grant the arrested person bail and what conditions will be imposed. This is called police bail.
When a person has been arrested and has not received police bail, they must be taken to the nearest local court by the police to make a bail application. If their arrest has occurred on the weekend, police must take them to the Parramatta weekend bail court.
If a person does not want to apply for bail, they will be taken into custody, where they will stay until their legal matter is finalised.
Some Sydney criminal lawyers are available 24 hours for bail applications and urgent legal advice, which can assist people arrested on a weekend.
If an accused person has been refused bail in a NSW local court, they are permitted to submit a bail application at the Supreme court of New South Wales. A judge will hear the bail application of the Supreme Court instead of a magistrate at a local court.
An accused can only make a Supreme court bail application after they have been refused bail in a local court. An accused will only have one opportunity to obtain Supreme Court bail unless they can show there are further grounds at a later stage.
Supreme court bail applications are complex; some can take an entire day. It is, therefore, crucial that bail applications are managed by bail application lawyers who have extensive experience in criminal law matters and can offer comprehensive legal advice.
Court Of Criminal Appeal
The final alternative for a person to obtain bail if they have been refused at the Supreme court is to apply to the court of Criminal Appeal. The bail application will be presented before three Supreme court judges who will hear the request afresh and determine whether bail should be granted.
How Many Times Can You Apply For Bail?
A court can only receive a bail application once unless they satisfy any of the following grounds stated in the Bail Act 2013;
- The person was not legally represented
- New information has become available and was not already presented
- Changes to circumstances since prior applications
- The accused is a child and a first-time offence
It isn’t easy to make a subsequent bail application after a failed attempt, and there are limits with how many times you can apply. Therefore, it is crucial that you seek legal advice from a criminal lawyer specialising in bail applications. A bail lawyer can give you the best possible chance of obtaining bail.
What Determines Bail Approval?
Before granting a person bail, an accused person will need to pass two bail tests: the unacceptable risk test and the show cause test. The show cause test is only relevant for certain offences and circumstances and does not apply to people under the age of 18 years.
If the court considers a person an unacceptable risk, they can refuse bail.
What Is The Unacceptable Risk Test?
As stated in the Bail Act 2013, the unacceptable risk test specifies examples of what may prevent a person from obtaining bail. If the prosecution proves that the risk is unacceptable, a person may be refused bail. The risks can be mitigated by placing bail conditions, and a court must be satisfied that no unacceptable risks are present before approving bail. The unacceptable risk test requires that the following bail concerns will need to be considered:
- Failure to appear in court or leave the jurisdiction (flight risk)
- Commit a serious offence if released within the community
- Endanger the safety of individuals, victims or the community
- Interference with evidence or witnesses
When the court assesses a bail concern, they will also take the following factors into account:
- Background, circumstances and criminal history
- Seriousness of the offence
- History of violence
- History of compliance with court orders
- Criminal associations
- Conduct towards the victim and any associated family member
- Associations with terrorist organisations or violent extremist groups
Individuals must seek legal advice from experienced bail application lawyers to improve their chances of obtaining bail.
What Is The Show Cause Bail Test?
Once a person has passed the unacceptable risk test, they will also need to show the court why their detention is not justified, explaining reasons why they should be granted bail. For example, they are the primary caregiver for a sick, elderly parent and must work to support the family.
If an accused person has an extensive criminal history and the allegations are severe, it is less likely that bail will be granted.
Some examples of what may justify the show cause bail test include:
- Likelihood of receiving a custodial sentence
- Young and first-time offenders
- Aboriginal or Torres Strait Islander
- Weak prosecution case
- Medical issues
- No unacceptable risks
- Deposited a large sum of money
- Exceptional hardship for family members
- Strong supportive family
- Need to prepare a legal case and have access to your defence lawyer
- Low-level risk of reoffending
- Delays to the legal proceedings
- Attending drug/alcohol rehabilitation
When Does It Apply?
The show cause test only applies to adults in the following circumstances:
- The offence that a person has been charged with comes with a life imprisonment sentence, for example, murder.
- The person was charged with a serious indictable offence, such as sexual intercourse or infliction of bodily harm to a person under age 16.
- A serious personal violence offence that inflicts grievous bodily harm or wounding and has received a previous conviction for personal violence.
- An offence which involves the use of a firearm; or
- Offence with unlawful possession of a prohibited firearm in a public place; or
- An offence under the Firearms Act which involves the supply, acquisition, manufacture or giving possession of a prohibited firearm or part.
Either of the following offences under the Crimes or Weapons Prohibition Act:
- Use or unlawful possession of a military-style weapon
Buying, selling or manufacturing a military-style or prohibited weapon.
- Offences under the Drug Misuse and Trafficking Act involving cultivation, supply, manufacture, possession or production of a prohibited drug of commercial quantity.
- Under the Commonwealth criminal code, an offence that involves trafficking, importing, exporting, selling and cultivating a commercial quantity of a serious drug.
- An offence by an accused person whilst on bail or parole.
- A failure to comply with a supervision order.
- Aiding and abetting, inciting, conspiring or being an accessory to a serious indictable offence.
- A serious offence committed by an accused person whilst they have a warrant authorising their arrest.
The laws relating to bail applications and conditions are detailed in the Bail Act 2013. The law states that anyone who has been granted bail is entitled to be released from custody. Conditional and unconditional release are the two types of bail. This means that a person can obtain bail with or without conditions.
A bail application can only be made to the same court once unless the person can satisfy one of the grounds in the Bail Act.
What Conditions Can Apply?
When bail is granted to a person, authorities must ensure they will not harm the community or reoffend. To mitigate any identified risks, authorities can place conditions on their bail, which helps to ensure that the person will refrain from any unlawful or threatening behaviour. The conditions will vary depending on the individual’s circumstances and the nature of the crime.
Some common conditions include the following;
- Maintain residence at a specific address
- Adhere to a curfew which prevents them from leaving home during specific timeframes
- Report regularly to the police
- Prohibit visiting specific suburbs or locations
- Prohibit communication with specific individuals
- Prohibit visiting international departure locations
- Surrender passport
- Deposit a required sum of money as surety
- Abstain from drugs or alcohol
- Provide character references from acceptable persons
The court may request that an acceptable person provide a character reference or pay a specified amount of money/surety.
An acceptable person is someone who has known you for a long time and has no criminal convictions, bankruptcy proceedings against them, or outstanding criminal charges. Their reference must state how long they have known you and the circumstances of your acquaintance. They must also say why they believe you will comply with bail.
What If I Don’t Comply With My Bail Conditions
Sometimes circumstances change, and you may no longer be able to adhere to the conditions set in your bail. Whether it is something as simple as falling sick and unable to attend a required meeting or having an accident and missing a curfew, it is essential to contact the police station or coordinator as soon as possible. For these occasions where it may be a one-time occurrence, it may be ok, but what about situations when your circumstances change that you will not be able to meet the bail requirements at all? Moving house, for example, or starting a new job with different working hours. In these instances, experienced bail lawyers can offer advice and guidance to arrange for your matter to be brought back to the court for a bail variation to have your bail conditions changed.
You must notify authorities as soon as your situation changes, as a breach of bail can have severe consequences.
What Happens When You Breach Your Bail Conditions
Depending on the specific circumstances, there are several courses of action that the police may take if you breach bail. Either of the following may occur;
- No action is taken
- A warning is issued
- A court attendance notice is issued
- A police officer will apply for an arrest warrant
- You are arrested and taken to court
In all cases, the police will consider the seriousness of the breach and if your excuse is valid. Your personal circumstances and character is also evaluated, and consideration of alternatives to being arrested if appropriate.
If you are required to go back to court, you may either change your bail conditions, be released with no change, or have bail revoked and remain in custody until your legal matters are finalised.
If your breach involves failing to appear at court and you do not have a reasonable explanation or excuse, you risk imprisonment for up to three years and a fine of $3300. You may also have to forfeit your surety/bond.
When a person is accused of a crime, it takes time for their legal matter to proceed through the criminal justice system. If the accused person is arrested and bail is granted, they are permitted to be released back into the community whilst their criminal matter concludes.
When a person does not obtain bail, they will spend time in prison until they are either convicted of the crime or found not guilty and released.
The people who can grant bail are called “bail authorities”. It may be the police, local or district court, or the Supreme Court.
For a person to receive bail, they need to prove to the court that they are not a risk and can be safely released into the community whilst their legal matter concludes. The court will address any bail concerns and determine whether the accused presents an unacceptable risk to the community.
To mitigate any identified risks, authorities can place conditions on their bail, which helps to ensure that the person will refrain from any unlawful or threatening behaviour. The conditions will vary depending on the individual’s circumstances and the nature of the crime.
Conditions will vary but could include; regularly reporting to the police, surrendering your passport, or avoiding visiting specific locations or persons.
Sometimes circumstances change, and you may no longer be able to abide by the conditions set in your bail. You must notify authorities as soon as your situation changes, as a breach of bail can have severe consequences.
In NSW, bail application lawyers can provide urgent legal advice and bail applications available 24 hours a day.
It’s challenging to make a subsequent bail application after a failed attempt, and there are limits with how many times you can apply. You must obtain advice from bail application lawyers. An experienced bail lawyer can provide comprehensive legal advice and give you the best chance of receiving bail.
How Much Does Bail Cost In Australia?
Bail charges vary depending on the severity of the offence and the personal circumstances of the accused person. For severe offences, the cost will likely be higher than a minor offence.
A deposit or surety may be required, and the funds will be refunded if the case is dismissed or acquitted. Also, if the accused has complied with their bail conditions, they are entitled to get their money back.
Can You Appeal A Bail Decision In NSW?
A court can only receive a bail application again if the accused person satisfies one of the following further grounds:
- No lawyer was present at the previous bail application
- New relevant information that was not previously presented is available
- Major changes to circumstances
- The accused is a child and a first-time offender
It’s challenging to make a subsequent bail application after a failed attempt, and there are restrictions on how many times you can apply. You must obtain legal advice from bail lawyers who specialise in bail applications. Bail application lawyers can help give you the best possible chance of receiving bail.
What Are Bail Conditions NSW?
When a person is granted bail, authorities must ensure they will not harm the community or reoffend. To mitigate any identified risks, authorities can place conditions on their bail, which helps to ensure that the person will refrain from any unlawful or threatening behaviour. The conditions will vary depending on the individual’s circumstances, the nature of the crime, and whether you have a history of compliance with court orders.
Conditions will vary but could include; regularly reporting to the police, surrendering your passport, or avoiding visiting specific locations or persons.