Breach Of Bail In NSW

Breach Of Bail In NSW

Breach Of Bail In NSW

Breach of Bail in NSW refers to the violation of conditions imposed on a person released from custody before their trial. The penalties for breaching bail include fines, imprisonment, and revocation of bail, and the article explains how to avoid breaching bail and what to do if a breach occurs.

A breach of bail is an extremely serious offence. The police may revoke your original bail agreement, you may need to attend court, or risk being kept in custody and refused bail. Find out how to apply for bail, what are bail conditions, and what happens when you do not comply, and a breach of bail occurs. Let’s take a closer look.

What Is Bail?

Bail means that when the police arrest you and charge you with an offence, you can go free whilst your legal matter proceeds. It is also possible to remain on bail until your case is due to come before court. Unfortunately, you may stay in prison if you are denied bail until your legal matter is finalised. If you are later found innocent, you will have spent time in jail unnecessarily.

After being arrested by the police, they can either; release you and provide you with details of your upcoming court date, keep you in custody overnight to attend court the next day, or release you on bail. Being released from police custody means you are free to go on the condition that you will appear in court on your scheduled court date. There are often conditions which must be adhered to. For example, you may have to comply with a curfew or regularly check in at your local police station.

Who Can Grant Bail?

Several people can grant bail to an accused person and are called bail authorities. A person can be granted bail in several ways; the police, local courts, the Supreme court or the court of criminal appeals.

Police

Police can grant an arrested person bail when they take the person to their nearest police station. The investigating police office and the custody sergeant will decide whether to give the accused person jail and what conditions will be attached. The person can be released immediately if the police decide to grant bail.

Local Courts

If the police refuse to grant bail, the individual must go to their nearest local court, where they will need to submit a bail application or risk being sent to jail.

If their arrest occurs on the weekend, they can apply for bail at the Parramatta weekend bail court. If an urgent bail application is needed, experienced criminal bail application lawyers in NSW have dedicated 24-hour phone assistance available to assist people prepare urgent bail documentation.

Supreme Court Of NSW

If a bail application at NSW local court has been refused, the applicant can make a new application to the Supreme Court of New South Wales.

Court Of Criminal Appeal

Having been refused bail from the Supreme court, the final opportunity to submit a bail application is to the court of criminal appeal. Three judges from the Supreme court will determine whether bail is to be granted.

What Is Show Cause

The rules relating to bail in NSW are governed by the Bail Act 1978. The act has been amended numerous times. The 2013 bail act amendments introduced the insertion of the ‘show cause’ test. The new legislation states that certain offences require the accused to pass the test, which requires the person to justify why they should receive bail. This means they must provide sufficient evidence as to why it would be unreasonable to remain in custody during their court case proceedings. Show cause can be used if someone has breached bail for another offence or has committed other serious crimes such as murder or sexual offences.

If the accused satisfies the requirements of the show cause test, they must then pass the unacceptable risk test to obtain bail.

Criminal defence lawyers have many years of experience in dealing with such matters. They can prepare the bail application to outline why it would be unjustified to detain the accused person.

Unacceptable Risk Test

Once the show cause test has been passed, the second test is the unacceptable risk test. This test requires that the bail concerns are considered, which means that even if an accused has passed the show cause test, their bail may still be denied as they pose an unacceptable risk to the community if released on bail.

Stage one of the unacceptable risk test assesses four bail concerns.

What Is A Bail Concern?

Section 17 of the NSW Bail Act 2003 stipulates the bail concerns that may affect your ability to be granted bail. If you pose an unacceptable risk regarding any of the four concerns stated in the act, you will be denied bail;

  • Failure to attend court if bail is granted
  • Risk of committing another offence if released on bail
  • Risk of endangering the alleged victim, individuals or the community if released
  • Interfere with evidence or witnesses if granted bail

Stage two of the legislation stipulates that when determining if any bail concerns exist, the bail authority must consider the following factors:

  • Close relationship with family
  • Current or upcoming employment
  • Criminal history, background, circumstances and community ties
  • Seriousness and nature of the alleged offence
  • Strength of the prosecution’s case against you
  • History of violence or not complying with previous orders
  • History of committing crimes whilst on bail
  • Any criminal associations
  • Associations with violent extremism groups
  • If refused bail, your length of imprisonment
  • Likelihood of receiving a prison sentence if found guilty
  • Unique vulnerabilities, for example; aboriginal heritage, youth, mental health issues or health concerns
  • Require bail to prepare a court case with your legal team

When the accused passes both tests and is no longer an unacceptable risk, they may be granted bail. But, if they are found to be an unacceptable risk, then bail conditions will be put in place to address any concerns or risks.

What Are The Different Types Of Bail Conditions?

There are different types of conditions, and the bail conditions applied will vary depending on the offence’s severity and suit various situations and backgrounds. The conditions must be reasonable and adequately proportionate to the crime.

The most important condition is that you attend court on your next court date. In addition, other bail conditions may also be imposed by the police or the court.

The different types of bail conditions include:

Conduct Requirements

Some bail conditions are a list of things that you must or mustn’t do, and these are called “conduct requirements” some examples include:

  • Report to the police station every day
  • Live at the same address
  • Give your passport to the police
  • Refrain from contacting certain persons
  • Avoid specific places
  • Abide by a curfew
  • Attend a drug or alcohol program

Security Requirements

A security requirement usually involves money you must pay if you do not attend court on your required date. Sometimes, the court will require a security deposit or surety from your bail guarantor before you can be released from custody. In other cases, the property can be used as security instead of cash.

Character Acknowledgements

A character acknowledgement is when an acceptable person signs a form to state that you are a responsible individual who will obey the conditions attached to your bail. The person must have known you for some time, be of good character, have no police record or criminal convictions, and be acceptable to the court.

Enforcement Conditions

Enforcement conditions are established rules that ensure you comply with other bail conditions. For example, you may not be allowed to drink alcohol. An enforcement condition that coincides with this is to willingly submit to a breath test to comply with your bail conditions.

What If You Can’t Comply With Your Bail Conditions?

Certain circumstances may arise that make it difficult for you to abide by the conditions attached to your bail. For example, you may get so sick that you cannot attend the police station or weekly check-in venue that you have been ordered to attend. Or you may get into an accident which prevents you from making it home in time before your curfew. In these circumstances, you should immediately contact the police station where you are supposed to report and advise them that you have breached a bail condition. If you are sick, you will need to obtain a medical certificate describing the illness’s nature and inform your program coordinator.

If there is a bail condition that you may not be able to comply with under any circumstance, you should discuss such matters with your solicitor and arrange to have your situation brought before the court as a bail variation matter, as it may be possible to change one of your bail conditions. For example, the acceptable person who was supposed to lodge a security deposit on your behalf fails to do so, and you cannot find anyone else to lodge one for you.

What Is A Right To Release Offence?

In NSW, there are specific offences where the court must grant bail if an accused is charged with a “right to release” offence.

They can include the following:

A Fine Only Offence

Any offence that does not carry a jail sentence, and the accused person is penalised with a fine only.

A Summary Offence

Summary offences are less severe, and most are punishable with a fine and are only dealt with in local courts. A summary offence could be disorderly behaviour or driving under the influence of drugs or alcohol. The NSW Summary Offences Act 1988 contains details of the crimes which fall under this category.

A Case Conference

For some offences, a pre committal conference is used to allow the accused person an opportunity to address the harm they have caused in an informal meeting rather than going to court. This is generally used for young offenders.

If a person has been charged with a right to release offence, failed to comply with bail conditions, or has an excluded offence, they may not be granted bail.

How To Make A Bail Application?

You will only be granted bail if you can satisfy the show cause and unacceptable risk tests in court. In NSW, you only have one opportunity to make a bail application in the local court. If the application is unsuccessful, there are limited circumstances where a second application can be made. The application must be correct the first time.

A local court bail application will be heard much quicker than in the Supreme court. Sometimes, it may be within three days of filing the appropriate documents.

A Supreme court bail application should be prepared by an experienced bail lawyer or criminal lawyer as they have a thorough knowledge of the judicial system and can help increase your chances of obtaining bail. A lot more work and preparation are required for this application, and you must be familiar with the filing procedure.

To support your Supreme Court bail application, you will need to file supporting documents which may include:

  • Reports from a psychologist and medical documents.
  • Character references from an acceptable person – ideally from someone who has known you for a long time and, if possible, hold a position of responsibility within your community, i.e. a priest or business leader.
  • Certificates from any courses you completed whilst in custody, such as TAFE course, personal development courses, etc.
  • An application to attend a rehabilitation program once you obtain bail.
  • Other relevant material that may assist your application, with specific emphasis on showing that you are of good character and a good citizen.

The benefit of applying to the Supreme court for bail is that your application will be presented to a different judge who will see the application for the first time. In conjunction with any new material, it can help increase the likelihood of obtaining bail.

Once bail is approved, you will be issued a bail acknowledgement detailing the bail conditions and explaining the consequences if you fail to comply.

How Much Is Bail In NSW?

The amount of bail money paid as security will vary depending on the seriousness and nature of the charge. Each case is different as individual circumstances will have an impact, like personal background, financial circumstances and the likelihood of you abiding by the terms of bail.

The bail money amount could be as little as a few thousand dollars or millions, depending on the person who forfeits the money to the court. A judge will decide the bail amount to be paid, which is refundable once matters have been finalised.

How Do You Get Your Property/Bail Money Back?

Once your legal matter is finalised and you complied with the conditions of your bail, you can obtain a refund for your security deposit. You will need to obtain a copy of your bail refund letter from the court registry and send it to the Supreme court. Or you can also get your refund from your local NSW court. For that option, you must write to the bail court in Sydney and submit your statement and bail refund letter. In both cases, you will need to show a copy of your original bail receipt and a form of identification.

If you have lodged property, i.e. the title deed of your house as a security deposit, the court will have lodged a caveat against it. A caveat prevents anyone, including yourself, from dealing with the property. You cannot sell or manage your property as long as the caveat remains.

To remove the caveat, you must obtain a copy of your bail refund letter from the court registry. The letter will need to be submitted to the Supreme court, and then you can complete a withdrawal of caveat form. The form will need to be completed and submitted to the Supreme court bail matters counter, along with two forms of identification which displays your signature.

The deputy registrar will sign your caveat withdrawal form and return all other bail documents.

Those documents must be taken to the Land Titles Office (Land and Property Information Building) in Macquarie Street Sydney to remove the caveat.

What Is The Penalty For Breaching Bail?

When you breach a bail condition, it is often up to the discretion of the police officer to decide upon what action will follow. For example, if you forget to report on a specific day, you may only be issued a warning. But, if you do not have a reasonable excuse and breach any of your bail conditions, you may be arrested by police, taken to a police station to be charged, have your bail conditions varied, or even revoked. The police can issue you with a court attendance notice.

A short hearing may be required if the accused denies they breached a bail condition, but generally, individuals will admit to failing to comply with their bail conditions. A court can choose the outcome depending on any evidence or information that they believe is credible. Any of the following may occur:

  • You may be released on your original bail
  • Your original bail conditions may vary or be changed completely
  • Your bail may be revoked – this would generally include the surety forfeiting any monies lodged for bail

Depending on the severity of the breach, the action taken by the police officer will vary. But if you commit serious offences like failing to appear in court, you may face a fine of $3300 or be charged the maximum penalty of three years imprisonment. If you fail to appear in court, it is a criminal offence, and you will need to provide a reasonable explanation as to why you did not attend or risk facing severe charges. You should obtain legal advice from a lawyer who specialises in criminal law.

What If You Are Refused Bail?

Bail applications in NSW can only be made once in the same court. For example, if you have made an application to a local court and were refused, you can not reapply to that same court. The only circumstances where you may have grounds to reapply is if;

  1. A lawyer did not initially represent you
  2. You have new information
  3. Your original circumstances have changed
  4. You are under 18 years

You may be able to apply to the Supreme court if you have been refused bail from a district or local court. Supreme court bail applications have very stringent requirements, and substantial additional material must be filed along with the application. The process is more formal and requires considerable preparation before submitting your application. It is crucial that you consider whether you have adequate grounds to make another application, and obtain legal advice, as the length of time to wait is substantially longer.

Summary

In simple terms, bail means an accused person can go free whilst their legal matter proceeds. You are released from police custody and are free to go on the condition that you will appear in court on your scheduled court date. You will be issued a bail acknowledgement detailing the bail conditions and explaining the consequences if you fail to comply.

When you breach a bail condition, it is often up to the discretion of the police officer as to what action will be taken. Depending on the severity of the breach, the action taken by the police officer will vary. But if you commit a serious offence like failing to appear in court, you may face a fine of $3300 or be charged the maximum penalty of three years imprisonment.

The NSW Bail Act 2003 stipulates the bail concerns that may affect your ability to be granted bail. You will be denied bail if you pose an unacceptable risk regarding any of the four concerns stated in the act. A type of bail condition can include; Conduct and security requirements, character acknowledgements and enforcement conditions.

If a bail application at the NSW local court has been refused, a new application can be made to the Supreme Court of New South Wales. A supreme court bail application process is more formal and requires substantial preparation before submitting your application. You must consider whether you have adequate grounds and obtain professional legal advice because if you are denied, you can not reapply to the same court.

FAQs

1. What Happens When You Breach Bail In NSW?

When you breach a bail condition, it is often up to the discretion of the police officer as to what action will be taken. For example, if you forget to report on a specific day, you may only be issued a warning. But, if you do not have a reasonable excuse and breach any of your bail conditions, you may be arrested by police, taken to a police station to be charged, have your bail conditions varied, or even revoked. The police can issue you with a court attendance notice.

Any of the following may occur:

  • You may be released on your original bail
  • The original conditions of your bail may vary or be changed completely
  • Your bail may be revoked – this would generally include the surety forfeiting any monies lodged for bail

If you commit a serious offence like failing to appear in court, you may face a fine of $3300 or be charged the maximum penalty of three years imprisonment.

2. What Are Bail Conditions NSW?

There are different types of bail conditions, which can vary depending on the severity of the offence. Police impose bail conditions to suit a variety of situations and backgrounds and will put them in place to address any concerns or risks that may be present. The different types of conditions include conduct and security requirements, character acknowledgements and enforcement conditions. They may consist of a list of things you must or mustn’t do, the money you are required to pay, or established rules that ensure that you comply with other bail conditions. Such as willingly submitting to a regular breath test, abiding by a curfew or attending court on your next court date. Any breach of these conditions is a criminal offence.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Bail or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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