Bail refusal within the criminal justice system is NSW, often leaves you and your family unsure about what to do next. When a court denies bail, it means that you must remain in custody until your hearing, trial, or a subsequent bail application. This decision is based on several factors, including the severity of the alleged offence, your criminal history, the perceived risk of reoffending, and the safety of the community.

The bail process in NSW is inherently complex and is governed by laws and regulations which are designed to balance the rights of the defendant and the safety of the community. Understanding the legal options available after a bail refusal is crucial. By navigating the complexities of the bail system, the defendant can better manager their situation and explore avenues for their release from custody.

Understanding Bail Refusal

When bail is refused, it means that the court has decided that you must remain in custody until your hearing, trial or another bail hearing. This decision is finalised after considering a variety of factors to determine whether your release will pose an unacceptable risk.

In NSW, the legal framework for bail decision is governed by the Bail Act 2013. This Act outlines the criteria that the courts must consider when deciding whether to grant or refuse your bail. This includes: 

• Risk Assessment: The court will assess whether you pose an unacceptable risk to the community. These risks include failing to appear in court, committing further offences, endangering the safety of the community, or interfering with witnesses. 
• The Seriousness of the Offence: The court will consider the severity of the offence. The more serious the offence, the more likely bail will be refused. 
• Your Criminal History: The court will consider your past criminal record, including any previous breaches of bail. If your criminal record it more serious, it is more likely bail will be refused.
• Your Personal Circumstances: The court may take into account your personal background, employment, family and special needs when considering whether to grant bail.
• Potential Bail Conditions: The court will consider whether the imposition of specific bail conditions can mitigate any risks. If conditions cannot effectively reduce these risk, it is more likely bail will be refused. 

Grounds for Bail Refusal

Show Cause Test

The show cause test is a critical requirement under the Bail Act 2013 in NSW. This test applies to serious offences where you must demonstrate why your detention in custody is not justified. When the show case test is applicable, the onus is on you to provide reasons for your release on bail. This means that you must show cause as to why you should not be kept in custody. 

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To satisfy the show cause requirement, you must present evidence and arguments which convey your community ties, employment, lack of criminal history, and any other circumstances, such as health issues or family responsibilities. The aim of this is to convince the court that your detention is not needed and you can be released on bail safely. If the offence you committed requires you to show cause, and you fail to satisfy this test, bail will be refused.

Unacceptable risk test

The unacceptable risk test is another critical requirement under the Bail Act NSW. Even if you pass the show cause test or if it does not apply to your case, the court must still consider whether you pose an unacceptable risk if released on bail. The court will consider several factors such as:

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1. Risk of Failing to Appear in Court. The court will assess the likelihood that you will attend all court appearances. Factors such as past failures to appear, community ties, and employment are all taken into consideration.
2. Risk of Committing Further Offences: The court will examine whether there is a risk that you will commit additional crimes if you are released on bail. This will involve taking into consideration past criminal activity. 
3. Risk of Endangering the Community: The safety of the community is one of the largest considerations. The court will consider whether you pose a threat to the public, victims, or witnesses. This can include risk of violence or stalking and intimidating. 
4. Risk of Interfering with Witnesses or Evidence: The court will consider the potential of you interfering with witnesses or tampering evidence. 

If the court identifies any of these risks as unacceptable and cannot mitigate them effectively through bail conditions, you will be refused bail. The purpose of this test is to protect the judicial process and ensure the safety of the community. 

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Bail Refusal by Police

In NSW, police officers have the authority to grant or refuse bail if you have been arrested. This initial decision is usually made at the police station after you have been charged. Similarly to the court, the police can refuse bail on the following grounds: 

1. Risk of failing to Appear 
2. Risk of Committing Further Offences 
3. Risk to Community Safety 
4. Risk of Interference with Witnesses or Evidence.

Immediate Steps to Take Following Refusal by Police

When bail is refused by the police, you have certain rights and should take specific steps to address the situation. This includes: 

Right to Contact Legal Representation

You have the right to contact a lawyer immediately. Legal representation is crucial in navigating the next steps and preparing for a bail application. A lawyer will provide you with advice, representation, and help gather all necessary evidence to support a bail application.

Preparation for Court Bail Hearing

After police have refused bail, you will be brought before the court, this will usually happen with 24-48 hours, The court will review the decision of the police and consider your bail application. During this time, your lawyer will prepare arguments on your behalf and gather any necessary evidence to support your application for bail. 

What Happens When You Are Refused Bail By Police

When the police refuse bail, you will be held in custody until you can be brought before the court. This will usually happen the next day, during this period what usually happens is: 

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1. You will be Detained:

You will usually remain in detention in a police cell or a remand center. The conditions and facilities will vary depending on the location and resources of the facility you are being held in 

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2. Court Appearances

You will appear before a Magistrate or Judge for a bail hearing. During this hearing, the court will re-assess the grounds for bail refusal and consider the arguments presented by your lawyer. 

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3. Review of the Bail Application: 

The court will assess whether the concerns of the police about your release can be mitigated through the imposition of bail conditions. These conditions may include regular reporting to police, surrendering a passport, or adhering to curfews. 

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4. Court will make a Decision 

Based on the arguments and evidence presented, the court will either grant or refuse your bail. If bail is granted, your will be released under the conditions set by the court. If bail is refused, you will remain in custody until your next court date or until a successful bail application is made.

Applying for Bail at the Local Court after Police Refusal

If the police refuse bail, the next step is to apply for bail at the local court.  The application process for this involves submitting a formal request to the court for a bail hearing, this is usually scheduled within 24-48 hours of the police refusal. During this time, it is important to prepare for the court hearing and make arguments to address reasons for the initial bail refusal. At the hearing, a magistrate will review the case, consider the evidence presented and decide whether to grant bail under specific conditions.

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Bail Refusal at the Local Court

When bail is refused at the local court, the magistrate has determined that you pose an unacceptable risk which cannot be mitigated by bail conditions. The decision is based on several considerations including the seriousness of the offence, your criminal history, your likelihood of reoffending, the risk if failing to appear in court, and the potential for interfering with witnesses or evidence. 

During the bail hearing, both the prosecution and the defence will present arguments and the Magistrate will assess this and make a decision regarding your bail. 

Immediately following a bail refusal at the local court, you will remain in custody, The next steps involved are: 

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1. Contact Legal Representation 

It is important to remain in contact with your lawyer, they will provide you with guidance on the next steps and potential appeals. 

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2. Appeal to a Higher Court 

You have the right to appeal the bail refusal to the Supreme Court of NSW. This involves preparing a new bail application, often with additional evidence or arguments which address the reasons for the initial refusal.

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3. Prepare for Custody 

You should also prepare for the possibility that you may have to remain in custody for an extended period. This may involve making arrangements for personal matters, notifying employers and discussing with family members. 

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Seeking Bail from the Supreme Court after Local Court Refusal

If bail is refused in the local court, the next step is for you to seek a bail review in the Supreme Court. This process involves submitting an application to the Supreme Court and requesting a review of the local court’s decision. The application must outline the grounds for seeking bail and address the reasons for the refusal in the local court. 

To begin the process, you must file a Notice of Motion and an affidavit in support of the bail application. These documents should include arguments, new evidence and any proposed bail conditions to mitigate the risks identified by the local court. 

Preparation for a bail review at the Supreme Court is important for increasing the chance of a successful outcome. In order to prepare properly you should gather any additional evidence, address previous concerns of the local court, and work closely with your lawyer to prepare a strong argument.

Potential Outcomes 

The Supreme court will schedule a hearing to review the bail application. The potential outcomes of the Supreme Court bail review include: 

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1. Bail being Granted

The court may decide to grant bail, often with specific conditions designed to mitigate the identified risks. These conditions could include regular reporting or curfews. 

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2. Bail being Refused

The court may uphold the decision of the local court and refuse bail, meaning you will remain in custody until your hearing or trial or until a bail application is successful.

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The timeline for the review process can vary, but usually takes several weeks from when the application is files to the hearing date. The exact duration depends on the schedule of the court.

Bail Refusal by the Supreme Court

If the Supreme court refuses bail, you must remain in custody until your hearing or trial date. The refusal by the Supreme court is a serious setback, as it is a high level of judicial review. This decision indicates that the court has determined that the risks associated with releasing you on bail cannot be effectively mitigated. 

The immediate implication of a Supreme Court bail refusal includes the continuation of your detention in a remand facility. This period can last until the hearing or trial which could be several months depending on the court’s schedule and the complexity of the case.

Alternative Legal Remedies and Potential for Re-Application

Even after a refusal by the Supreme Court, there are still potential legal remedies and strategies with can be undergone: 

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1. Re-applying under different Circumstances 

A primary way to challenge a Supreme Court bail refusal is to re-apply for bail if there is a significant change in circumstances. This could include new evidence, changes in a personal situation, or changes in the prosecution’s case. 

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2. Appeal to a Higher Judicial Authority 

In some cases, it may be possible to appeal to a higher judicial authority such as the court of criminal appeal. This is usually rare and will require demonstrating that a legal error has occurred. 

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3. Negotiating with the Prosecution 

Engaging in negotiations with the prosecution can sometimes lead to agreements that may support a renewed bail application. For example, if the prosecution agrees to certain conditions or if there is a change in the perception of your risk level. This may be grounds for a new application for bail.

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Steps to Take After Bail is Refused at Supreme Court

If the Supreme Court reuses bail, it is important to: 

1. Remain in contact with Legal Representation 

Continue to remain in contact and work closely with your lawyer to explore all possible avenues for re-applying for bail or seeking remedies. Your lawyer will provide advice and help identify any changes in circumstances which may support a new application

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2. Prepare for Hearing/Trial 

Focus on preparing a defence for the upcoming trial. This includes gathering evidence and preparing arguments.

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Applying for Bail at the Court of Criminal Appeal

An application for bail can be made to the Court of Criminal Appeal under specific circumstances, following the refusal by the Supreme Court. This stage is one of the final avenues for seeking bail and is generally used when there is a significant change of circumstances or when there are legal or procedural errors in previous hearings. Such circumstances could include new evidence, or significant changes in personal circumstances.

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The process of applying for bail at the CCA involves several critical steps:

1. Filing a Notice of Motion 

This form formally requests a bail hearing at the CCA. The form outlines the grounds for the application and provides a summary of the reasons why the previous decision should be re-evaluated.

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2. Supporting Affidavit

An affidavit must also be submitted with the notice of motion. This should include details about the case, your personal circumstances, and any new evidence or changes which support the reapplication. It should also address reasons why your initial bail was refused. 

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3. Evidence 

All evidence will need to be complied and submitted to the court. This includes references, medical records and new evidence.

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What happens when bail is refused at all levels?

When bail is refused at all levels, you must remain in remand until your court trial or hearing. This decision shows that the court have determined there is significant risks associated with releasing you on bail and that these risks cannot be mitigated with bail conditions. 

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Remaining in remand means you will be held in a correctional facility until your hearing or trial. In Sydney, this usually means being in one of the city’s remand centers, such as Silver water Correctional Complex. Silver water is a major facility that houses many people awaiting court dates. The conditions and facilities in remand centers are designed to detain people while they await court proceedings.

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The time spend in remand has implications for sentencing as the period spent in remand is taken into account when determining the final sentence. This means that the time already served in remand can be deducted from the overall prison sentence if convicted. For example, if you are sentenced to three years in prison, but spent one year in remand, you would have two years remaining to serve.

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What are the best strategies for getting bail granted?

Working with a Skilled Criminal Defence Lawyer

One of the best strategies for increasing the likelihood of being granted bail is to work with a skilled criminal defence lawyer. An experienced criminal lawyer understands the complexities of bail and can develop strong arguments to present in court. They will ensure that all documentation is accurate and correct. 

‍Adding Bail Conditions that Reduce Unacceptable Risk 

Proposing specific bail conditions which address the court’s concerns about any unacceptable risks you may pose. These conditions could include: 

• Regular police reporting 
• Curfews 
• Surrendering your passport 
• Residence requirements 
• Electronic Monitoring

Demonstrating Employment and Community Ties 

Showing that you have stable employment and strong community ties can impact the court’s decision regarding bail. Employment shows your responsibilities and that you have an established routine, while community ties indicate you are less of a flight risk. Evidence presented to support these factors can include employment records or contracts, letters from employers or documents of family or community involvement.

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Speak to Faraj Defence Lawyers about refused bail today

Being refused bail can be a difficult and stressful experience, but it is not the end of the road. If you or someone you know has been denied bail, it is essential to seek professional legal assistance immediately. Faraj Defence Lawyers are experiences in handling bail application and appeals. We are here to help you navigate this challenging and stressful process. 

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Our team understands the complexity of the bail system and will work tirelessly to explore all available options to secure your release.

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Contact us today at (02) 8896 6034 to book in a free initial consultation. 

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