What is bail?

When arrested and charged with an offence, you will be detained in prison, or released on bail. The granting of bail allows you to be at liberty in the community while your matter progresses in the court.

Once released on bail you will need to follow certain conditions, such as residing at a specific address or reporting to a police station.  A third party such as a friend or relative may need to ensure that you follow the conditions of your bail. This person is called the “surety”. That surety may also deposit money to the court on your behalf.

If once released on bail you fail to follow the set conditions, not only will there be a further warrant for your arrest, but the money will be forfeited.

 

Police bail and judicial bail

When charged by police, you should request bail. Depending on various factors, including the seriousness of the crime, you may be granted “police bail” immediately. This allows you to be released into the community to go about your daily life while the matter progresses through the court.

If police refuse bail, you will be taken to a local court where you can make an application for bail before the magistrate.

You should get legal advice before making a bail application; ideally as soon as you are arrested. This ensures that the bail application is properly prepared and presented to the court.

 

The bail application process

When deciding whether to grant bail, the two main issues the court must consider are whether the offence is a “show cause” offence, and whether you pose an “unacceptable risk”.

Bail application process

Show cause offences

For some offences, the magistrate will assume that you should not be released on bail. These offences are called “show cause” offences.

If charged with a show cause offence, you must explain to the court why denying bail and keeping you in prison is not justified. The onus is on you rather than the police. The court takes many different factors into account, including:

  • Whether you suffer from a serious medical condition.
  • Whether you need to support and care for your family.
  • The circumstances in which the offence took place.
  • The strength of the prosecution case.

If you cannot “show cause”, then bail will be refused. Show cause offences are usually serious, involving sexual misconduct, violence, or firearms. Additionally, if you are charged with another offence while on bail or parole, the new offence will be a show cause offence. The full list of show cause offences can be found in section 16B of the Bail Act 2013 (NSW).

 

Bail concerns and the unacceptable risk test

if you are able to show cause, the court must then decide whether there are any “bail concerns” that make you an unacceptable risk.

These are concerns that if released from custody, you may:

  • Commit another offence,
  • Endanger the safety of other people,
  • Interfere with the judicial process, or
  • Not attend court.

The court may impose specific conditions to address such concerns. These conditions must be workable, proportionate, and appropriate. For example, if the court thinks you may try to flee the country, you may need to report regularly to the police station.

If the bail authority finds that you pose an unacceptable risk despite the imposition of these conditions, bail must be refused.

 

Appealing unsuccessful bail applications

If the magistrate rejects your application, a second bail application can be lodged in the same Local Court, so long as you can show something new that was not presented in the first bail application. Alternatively, you can apply for bail to the Supreme Court. This can be a lengthy exercise, and a court date may not be granted if the application forms are not properly completed. It is highly recommended that this process be managed by an experienced defence lawyer.

 

Frequently Asked Questions

What should I do if I am arrested?

The first thing you should do as soon as you have been arrested, no matter what the circumstances or the time, is to contact a defence lawyer. Arrests can and often do happen at any time of day or night and you are not required to wait until business hours to contact your lawyer. Your family, a friend or even a colleague can also make the initial call for assistance.

You will be given advice on your prospects of success in a bail application, and the best method of applying. You or your family will also be given advice on the sorts of conditions that may be imposed, how much money might be needed as surety, and any other requirements.

Nyman Gibson Miralis provides 24 hour assistance for bail matters, including during weekends.

What happens if I breach bail conditions?

If you fail to follow any of your bail conditions, you may be arrested and brought before the court. Bail entitlements may be revoked, and the surety money may be forfeited.

However, there is some discretion depending on the circumstances. For example, missing curfew by a few minutes might not be serious enough to warrant the bail being revoked. If you feel that the conditions of your bail are too onerous, you can obtain advice on applying for a variation to the bail conditions.

How likely is it that bail will be obtained?

The changes to the bail laws have made it increasingly difficult to obtain bail. The changes were implemented in response to community concerns about the NSW Government being “soft” on crime.

Upon the introduction of the Bail Act 2013 (NSW), bail became more difficult to obtain for show cause offences including serious drug offences, violence offences, sexual offences, murder, and robbery.

A magistrate is also less likely to grant bail if you:

  • Already have several offences on your criminal record.
  • Are considered a flight risk.
  • Were on parole or bail at the time of the alleged offence.

Other factors which may limit your chances of getting bail include a lack of community or family ties, and failure to comply with previous bail conditions.

What types of bail conditions may be imposed?

The conditions placed on your bail depend on the circumstances of your arrest and the offence.  Generally, you may be required to comply with:

  • Conduct requirements: Regulate what you can or can’t do, such as reporting to the police, surrendering a passport, refraining from alcohol, avoiding contact with certain people or obeying a curfew.
  • Security requirements: Require you or another person to give “security” or “surety”. This means agreeing to pay money if you don’t attend court.
  • Enforcement conditions: Imposed to monitor or enforce compliance with another bail condition. These conditions may include submitting to breath tests, or answering the door every time the police attend.
  • Character acknowledgments: Requiring somebody of good character to sign a form stating that they believe you are responsible and will follow your bail requirements.

What happens if I am arrested over the weekend?

The police do not work standard office hours and you could be arrested anytime, day or night.

We can assist you with weekend bail applications if you need to sort a matter out over the weekend. As soon as you, a friend or relative have been refused bail, contact us to make immediate arrangements for an urgent bail application.

What happens if I am refused bail in the Local Court?

Initial bail applications in NSW are heard in the Local Court. If your application is rejected at this stage, a second bail application can be lodged in the same Local Court, so long as you can show something new that was not presented in the first bail application. Alternatively, you can apply for bail to the Supreme Court. You are likely to remain in custody for four to six weeks while waiting for an application to the Supreme Court to be heard.

In some situations, it may be better to remain in custody for a few days before making an initial application for bail in the Local Court, to ensure that all necessary information supporting your bail application is available.

We can provide further advice as to the appropriate timing of your bail application to maximise success.

What is a surety?

surety is someone who provides an amount of money, property or bank guarantee as a term of the bail release. The surety guarantees that you will attend your court hearing. If you fail to appear, the money may be forfeited to the court. A person over the age of 18 with no criminal history can generally provide the surety.

How long will I have bail?

Unless you breach or vary your bail, you are released on bail until your matter finalises.

Can my bail conditions be varied?

Yes, it’s possible to vary your bail conditions, particularly if the conditions are very strict or unduly interfere with your ability to work or go about your usual life. To vary the bail conditions, an application must be made and proper notice must be given to the relevant police officer, the prosecutor and the court. We can assist you with such an application.

How can we help?

We are experienced in successfully obtaining bail for our clients, including in situations where bail has previously been refused due to insufficient legal representation.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.