Since the introduction of tougher bail laws in 2015, bail applications have become increasingly important.

We take a look at the tests courts must apply in making bail decisions, and case studies that illustrate how bail applications work.

Tests for bailSuccessful bail application made by a defence lawyer

In deciding whether to grant a bail application, the court must now apply the following tests:

  • Have you been charged with a ”show cause” offence? In certain circumstances, including offences carrying a potential life imprisonment, sexual intercourse with a person under the age of 16, or serious interpersonal violence the answer may be yes. If yes, you must prove to the satisfaction of the court that your detention would be unjustified.
  • Do you pose an “unacceptable risk” of failing to comply with the bail conditions? In deciding this, a court will take into account the following matters:
    • Are you likely to fail to appear at your court hearing?
    • Are you likely to commit a serious offence while on bail?
    • Are you likely to endanger the safety of victims, individuals or the community?
    • Are you likely to interfere with witnesses or evidence before trial?

Bail Application Case studies

Here are a few examples which illustrate how the rules might be applied in cases of murder, drug supply and money laundering.

Murder Bail Application

The murder case

Rhiannon has been charged with murder. She has been accused of killing her husband, Robert.

Rhiannon’s sister contacts Nyman Gibson Miralis as soon as she hears about her sister’s arrest. After interviewing Rhiannon, we learn that Robert was violent towards Rhiannon for the entire fifteen years of their marriage. She says that she snapped one evening while he was watching TV and stabbed him in the neck.

Rhiannon’s version of events is backed up by her GP, who has recorded many instances of serious injuries, her psychologist and her sister. Numerous previous charges have also been laid against Robert.

The bail application

Based on Rhiannon’s information, we apply for bail. Although murder is a show cause offence, we argue that there is no unacceptable risk relating to Rhiannon. She is now the sole caregiver of her three children, holds an office job, volunteers for her local rural fire brigade, does not have a passport and has no other history of violence.

The bail application result

Based on our submissions, Rhiannon is granted conditional bail.

Drug supply Bail Application

The case

Michael has been charged with drug supply after being accused of trying to sell 20 grams of cocaine at a music festival. This is his second offence, although his initial offence was for a lesser charge, of possession of ecstasy.

After he was arrested he asked his best mate, who has just finished his law degree and specialises in corporate law, to assist him with his bail application. Michael is denied bail by the police and the local court.

Michael contacts Nyman Gibson Miralis once his local court application has been rejected. As there is no new information, it is not possible to reapply to the local court. We immediately apply for a Supreme Court hearing and luckily he is given a hearing date within four weeks.

Michael’s mother, Miranda, has tertiary bowel cancer and her prognosis is that she only has months to live. As she is a single mother and Michael is an only child, he has been largely responsible for looking after Miranda.

The bail application

Once again, drug supply is generally considered a ”show cause” offence. However we argue that Michael’s detention would be unjustified because he would not be able to look after Miranda and may not be released when she dies. We also argue that Michael’s prior offence was relatively minor and that there is nothing to suggest that Michael would be likely to intimidate any witnesses or otherwise reoffend prior to his trial.

The bail application result

Michael is granted bail, on strict conditions including a requirement to answer the door for random visits by the police and subject to a weekend and after-10pm curfew.

Money laundering Bail Application

The Money laundering case

Erica has been arrested and charged with money laundering. She was arrested at Sydney Airport just before she boarded a plane to Chile to visit friends from university. She had not bought a return ticket.

Erica’s friend contacts Nyman Gibson Miralis and requests that we act on Erica’s behalf.

It is alleged that Erica assisted her boyfriend, Colombian national Eduardo, launder several million dollars worth of money. Eduardo has been charged in various South American countries with drug offences and his current whereabouts are not known.

Erica has dual citizenship with Chile and has no family living in NSW.

The bail application

We advise Erica that we do not consider her prospects of a successful bail application are very high. In accordance with her instructions, we make an application to the local court.

The bail application result

Because of her dual citizenship, the fact that Erica was arrested at the airport and on her way out of the country and that social media suggests she is still very much in contact with Eduardo means that she is denied bail. On Erica’s instructions we do not pursue a Supreme Court application.