Understanding bail in New South Wales is essential when you are trying to navigate the legal system. The Bail Act 2013 NSW sets out the framework and conditions under which bail is granted or reduced. The aims to clarify the key aspects of the Bail Act, helping you grasp the requirements and implications of decisions regarding bail. Whether you are facing charges, or simply seeking to understand bail, this guide will provide you with all the necessary information to navigate proceedings. 

What is Bail? Understanding the Bail Act 2013 NSW

Bail is a legal mechanism which allows you to be released from custody under specific conditions set by the court while you await your court date. Bail exists to balance the notion of innocence until proven guilty and ensuring you do not pose a risk to the community. Bail is crucial as it upholds your rights while maintaining public safety. The Bail Act 2013 NSW governs the bail process in New South Wales.

Its purpose it to provide a clear framework for when and how bail can be granted or refused, ensuring consistency and fairness in bail decisions. The Act outlines various conditions and considerations, such as the nature of the offence, the accused’s background, and the potential risk to the community, guiding judicial officers in making informed decision regarding bail.  

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Who can grant bail?

Under the Bail Act, several authorities have the power to grant bail, each playing a crucial role at different stages of the legal process. These authorities include the police, the Local Court, the Supreme Court, and the Court of Criminal Appeal.

Police

Police officers can grant bail at the time of arrest or shortly after. This initial bail decision is typically made at the police station and is often conditional, with the aim of ensuring you appear in court. Police bail is usually granted for less serious offences and can come with conditions such as reporting to a police station or adhering to a curfew. 

Local Court

The Local Court is the next level of authority that can grant bail. If police bail is refused, or if the accused breached their bail conditions, the Local Court can review and grant bail. The court assesses various factors, including the nature of the offence, the accused’s criminal history, and the risk of reoffending to determine appropriate bail conditions. 

Supreme Court 

The Supreme Court has the power to grant bail for more serious offences and in cases where bail has been refused by the Local Court. Applicants may appeal to the Supreme Court for a review of their bail conditions or a decision. The Supreme Court conducts a thorough assessment, considering all relevant factors, to decide whether to grant bail and if so, under which conditions. 

Court of Criminal Appeal 

The Court of Criminal Appeal is the highest authority that can grant bail in New South Wales. It typically handles appeals against decisions made by the Supreme Court regarding bail. This court reviews the legal principles and the application of the law in bail decisions, ensuring that justice is served consistently and fairly across all cases. 

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The steps in getting Bail Granted

1. Getting arrested and held at police station 

When you are arrested and charged with an offence, you will likely be taken to a police station and held in custody. At this point, the bail process can begin and you must inform the police that you wish to apply for bail. The police will then assess your situation and decide whether to grant bail based on factors such as the severity of the offence, your criminal history, and the likelihood of you appearing in court. If the police decide not to grant bail, you will remain in custody and will need to submit a bail application to a court for consideration. 

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2. Submitting a Bail Application

Submitting a bail application, also known as a release application, involves formally requesting the court to release you on bail. This process requires presenting your case to a judicial officer, who will evaluate various factors before deciding whether to grant bail. An essential part of the bail application is identifying an acceptable person and a surety, who can vouch for you and ensure that you comply with the bail conditions. 

What is an acceptable person?

An acceptable person regarding a bail application, is someone who can act as a guarantor for you. This person must be of good character, have no criminal record, and be capable of ensuring that you adhere to all your bail conditions. The acceptable person may be required to provide a surety, which is a financial guarantee that you will comply with bail conditions and appear in court as required. The court relies on the acceptable person’s credibility and responsibility to mitigate the risk of the defendant reoffending while on bail. 

What is a surety or bail guarantor?

A surety or bail guarantor is a person who agrees to take responsibility for ensuring that you comply with their bail conditions and appears in court when required. This person usually provides a financial guarantee to the court, known as a surety or a bond, this serves as a form or security. If you fail to adhere to the bail conditions or does not appear in court, the surety may forfeit the amount pledged. 

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3. Attending a Bail Hearing

Once the bail application has been submitted, you will then attend the bail hearing. During the bail hearing, the court will review the application and consider various factors before deciding whether to grant bail. At the hearing, the Magistrate or Judge will examine the details of the case, including the severity of the offence, your criminal history, your likelihood of your appearing in court, and any potential risks to the community. Your lawyer, and the prosecution will present their arguments regarding the suitability of granting bail. After considering all the information, the judge or magistrate will decide whether to grant bail and, if so, under which conditions. 

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4. Entering into Bail (Bail Granted) 

If bail is granted, you must enter into a bail agreement, which involves formally agreeing to comply with the bail conditions set by the court. This process typically includes signing a bail undertaking, where you promise to adhere to specific conditions, this can include regularly reporting to police or residing at a specific address.

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Eligibility requirements for granting bail

Show Cause Test

The show cause test is a critical factor in determining eligibility for bail in New South Wales, particularly for serious offences. A show cause offence includes serious crimes such as certain drug offence, violent crimes, and offences involving firearms. When you are charged with a show cause offence, you must “show cause” as to why your detention is not justified. This means you have the burden of demonstrating to the court that there are compelling reasons for your release on bail, despite the serious nature of the charge. 

If you successfully pass the show cause test, the court will then assess whether there are any unacceptable risks associated with granting bail and how these risks can be managed. 

Unacceptable Risk

An unacceptable risk refers to the potential threats that you may pose if released from custody. These risks can include failing to appear in court, committing further offences, endangering the community, or interfering with witnesses or evidence. To address the risks, the court imposes specific bail conditions designed to mitigate them. These conditions usually include curfews, regular reporting to the police, or surrendering your passport. By imposing these measures, the court aims to ensure your compliance with the bail instructions, therefore reducing the likelihood of unacceptable risks associated with your bail.

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Having your bail application refused

If your bail application has been refused, you have several options to challenge the decision and seek bail through different legal avenues. 

Submitting it again to the local court

If your initial bail application is refused by the Local Court, you can submit a fresh application to the same court. This is usually done if there are significant changes in circumstances or new information that was not available during the first hearing. It is essential to present new arguments or evidence which could influence the court’s decision. Your lawyer will advise you regarding this. 

Applying to the supreme court

If the Local Court refuses your bail application, another option is to apply for bail to the Supreme Court. The Supreme Court has the authority to review the decision made by the Local Court and can grant bail under different conditions. The process involves filing a new bail application and presenting your case before a Supreme Court judge. The Supreme court will also consider the factors such as the nature of the offence, your criminal history and any potential risks when making a decision. 

Applying to the Court of Criminal Appeal

In cases where the Supreme Court also refuses bail, you have the option to apply to the Court of Criminal Appeal. This is the higher court in New South Wales for these matters, it reviews the legal principles and application of law in bail decisions. The Court of Criminal Appeal can overturn previous decisions if it finds that the lower courts have made errors in judgement or failed to consider critical aspects of the case. This option is typically pursued when all other avenues have been exhausted, it will require an in-depth argument to satisfy the court. 

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What are the costs associated with Bail?

When navigating the bail process, it is important to be aware of the costs involved. These costs can vary depending on several factors such as the nature of the offence, the conditions set by the court and your financial situation. 

How much is bail?

The amount you will have to pay for bail varies, depending on several different factors. There is not a set amount for bail charges, the amount provided is generally based on: 

1. The severity of the offence: if it is more serious the bail amount will likely be higher 
2. Your financial circumstances 
3. The potential risk of you not abiding by the conditions of bail
4. The likelihood of you not turning up to court 
5. Your potential risk to the safety of the community

Why I get my bail money back?

Yes you will get your bail money back, but only if certain conditions are met. This is a very common question that we often get from our clients. If you fail to appear before the court or breach your bail conditions then there is a chance you will forfeit the security that was deposited for bail.

Make sure you read our article of bail refunds for more information.

The common conditions & terms of bail

When bail is granted, there are usually bail conditions that you must adhere here to mitigate risks. These conditions are designed to ensure that you appear in court do not engage in activities that court potentially risk the public’s safety.

Varying the conditions of your bail

If you need to change of the conditions of your bail, you can apply to the court to have them varied. This process involves submitting an application detailing the reasons for the requested change and providing any supporting evidence. The court will consider factors such as the necessity of the variation, your ability to comply with the bail conditions, and potential risks to the community. 

Consequences of breaching the conditions of bail

Breaching the conditions of your bail can have serious consequences. If you fail to comply with any of the conditions set but the court, you may be arrested and brought back before the court. The court made then decide to revoke your bail, which can result in you being remanded in custody until your court date. Moreover, breaching bail conditions can lead to further charges being laid against you, negatively impacting your chances of being granted bail in the future. It is very important to adhere to your bail conditions to avoid serious repercussions.

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Applying for bail? Speak to us today

If you are currently applying for bail and need legal assistance and guidance then please feel free to reach out to us today. The team at Faraj Defence Lawyers is always happy to help and are experts when it comes to bail.

Book a free initial consultation with us now, by calling us at (02) 8896 6034 or emailing us at legal@farajdefencelawyers.com.au