Bail NSW : A comprehensive guide

A GUIDE TO PREPARING FOR BAIL (NSW)

If you or your loved one are to be charged with an offence, you (or they) may be held in custody until such time as a bail decision is made by police, or a release application is made to the court.

This process is more commonly referred to as 'bail'. Bail is the authority to be at liberty until the matter is finalised in court.

In New South Wales, the Bail Act 2013 provides the legislative framework for determining whether a person should be released on bail, and with or without conditions.

A bail decision may be one of the following:

1. to release the person without bail;
2. to dispense with bail;
3. to grant bail with or without conditions;
4. to refuse bail;

If you have a loved who has been taken into custody it is important to seek advice without delay.

The benefits of engaging a solicitor at the first available opportunity can be significant in the case of bail, and an application which has been properly prepared by an experienced criminal defence lawyer has excellent prospects of success.

My loved one has been arrested. What can I do?

If your loved one has been arrested and taken into police custody, they will be offered an opportunity to speak with a lawyer. Ideally this would occur very early in their detention but rarely is this the case.

It can be of great benefit for you to arrange for a lawyer to speak with your loved one in custody. We can also make preliminary enquiries to establish the police attitude towards bail, and provide any relevant information in relation to medical conditions or health concerns.

Our 24/7 hotline will put you in touch with one of our experienced criminal defence lawyers who can act swiftly.

What if Police refuse bail?

Wherever a person is taken into custody, a bail decision must be made as soon as reasonably practicable. Police have the power to grant or refuse bail in the same way a court does.

An exception to this is where the accused is intoxicated in which case Police may defer making a decision. However, even in the case of intoxication there can be no delay in bringing the accused before the Court.

If the accused is refused police bail, they must be taken before the Court as soon as reasonably practicable. This will be same day or next day.

It follows that if police have refused bail, they will usually be opposed to any release application made by the accused in court. For the greatest prospects of success, the application should be prepared by an experienced criminal lawyer at the earliest opportunity.

If the application is not made properly on the first occasion it can be very difficult to make a subsequent application in the Local Court.

Understanding how bail decision are made

Part 3 of the Bail Act sets the framework for making bail decisions and all bail decisions must be made in accordance with this part.

The test for a bail decision is a two stage process. First is the 'show cause' requirement and second is the 'unacceptable risk' test. After each test has been applied the decision may be 'bail refused'; 'conditional release' or 'unconditional release'.

'Conditional release' means to grant bail with bail conditions. 'Unconditional release' can mean either released without bail, dispense with bail or to grant bail but without bail conditions. 'Bail refused' will of course mean the accused is remanded in custody.

Show cause

Not all offences will require the accused to 'show cause'. A list of relevant offences has been provided by s 16B. They are offences serious in nature.

The purpose of the show cause requirement is to place the onus on the accused to show why they should not be held in custody, rather than on the prosecution to show why they should.

The provision does not apply to a person who was under 18 years of age at the time of the offence.

Unlike the unacceptable risk test the legislation does not enumerate the factors relevant to the assessment of show cause. Cause may be shown by a single powerful factor or a powerful combination of factors: R v S.

Some examples of where show cause has been proved include:

• where the accused is unlikely to serve a period of fulltime imprisonment;
• where there is a significant delay;
• the strength of prosecution case;
• the accused's age, antecedents; medical conditions; and
• hardship to family;

Unacceptable risk

If cause has been shown, or if the offence is one which does not require the accused to show cause the Court will then consider relevant bail concerns as provided by s 17 of the Act.

This requires the court to undertake an assessment of the risk that, if granted bail, the accused might:

1. fail to appear before the court;
2. commit a serious offence;
3. endanger the safety of any individual, witness or the community;
4. interfere with witnesses or evidence.

If a bail concern is identified, the court must determine whether there are conditions which can be imposed that may sufficiently mitigate those risks. It is not a one-size-fits-all approach and typically police will identify a number of bail concerns in each individual case.

An 'unacceptable risk' is where the court cannot be satisfied that the risk can be sufficiently mitigated by the proposed conditions and bail is therefore refused.

There are a number of matters that guide the court in making this determination and it is important that the application is carefully prepared in consideration of the accused's individual circumstances.

Some examples include but are not limited to:

1. the accused's background including history of violence, criminal history and community ties;
2. the nature and seriousness of the offence;
3. the strength of the prosecution case;
4. whether there is a history of compliance or non-compliance with bail or other court orders;
5. the length of time the accused is likely to spend in custody;

In the case of show cause offences, it is important to remember that bail is a two-part test which requires that both limbs are decided in favour of the accused. Bail may still be refused where cause is shown, but the accused presents an unacceptable risk.

Bail conditions

In addressing the relevant bail concerns your lawyer will carefully construct a number of proposed conditions on your behalf.

It is important that any proposed conditions comply with s 20A which states that they must:

• be reasonably necessary and appropriate to address bail concerns;
• be reasonable and proportionate to the offence;
• not be unduly onerous;
• be likely to be complied with;

This means that the court cannot impose bail conditions for the sake of it, nor can it impose condition(s) that you could not, or are unlikely, to comply with. For example, if you live in a remote place and you do not drive, daily reporting to police would be inappropriate in the circumstances.

Likewise, if you have a history of failing to report the condition would not be appropriate.

Types of bail conditions

Division 3 of the Act provides for the types of bail conditions the court may impose. They include:

• conduct requirements;
• security to be provided;
• character acknowledgments;
• accommodation requirements;
• pre-release requirements;
• enforcement conditions;

Conduct requirements may order you to do or to refrain from doing something. These conditions can include curfew or frequently reporting to police. They may also prohibit associations with certain people or visiting certain locations.

Security requirements most often require a sum of money to be paid to court which will be forfeited in the event of a breach of bail conditions. Security can be in property, and provided by the accused or someone on behalf of the accused.

It is important to note that in the case of security, whether it be cash or property, you must be able to demonstrate lawful ownership and origin (statements).

Your lawyer may be able to seek that the security be forfeited in the event of a breach, rather than deposited up front.

Character acknowledgments are similar to reference of good character. They must be provided by an appropriate person who can inform the court that you are a responsible person who will comply with your bail conditions. This referee must be a person of good character (without criminal record).

Accommodation requirements may order you to reside at a certain location or with family members.

Enforcement Conditions

Enforcement conditions can be more intrusive. They are conditions which are imposed to ensure the accused complies with their bail conditions.

An enforcement condition must specify the kind of directions that may be given to the accused, the circumstances in which each direction may be given and the underlying condition in connection with each direction.

For example, if the court imposes an abstention condition it might also impose an enforcement condition requiring you to submit to random drug or alcohol testing.

The Court must specify if you are required to submit to the direction of Community Corrections, or NSW Police, or both. It is important to understand exactly what the enforcement condition means, because it can, in some circumstances, give Police the authority to stop you anywhere, anytime.

An enforcement condition can only be imposed at the request of the prosecutor in the proceedings, and only if the court considers it reasonably necessary in the circumstances and having regard to:

• the accused's criminal history;
• the likelihood or risk of the accused committing further offences whilst on bail;
• the extent to which compliance with a direction affects persons other than the accused.

How long does it take to apply for bail?

Section s 71 of the Act provides that bail applications are to be dealt with as soon as reasonably practicable. In most cases, this will be on the first appearance.

The court may exercise its discretion under s 73 and refuse to hear an application if it is satisfied that the application is frivolous or vexatious or if the application is without substance or has no reasonably prospect of success.

What if bail is refused?

The importance of engaging an experienced criminal lawyer from the outset is critical in the case of bail. This is because a further application cannot be made except in certain circumstances as provided by s 74 of the Act.

Where an application is refused the Court must provide its reasons for doing in accordance with s 38.

If the reasons relate to the unacceptable risk test the court must state which risks were identified. The accused will be given a written notice setting out the terms of the decision and information regarding a review or variation of the decision.

This is helpful information where the accused considers a further application in the Local Court, or makes a fresh application to the Supreme Court.

Applying to the Supreme Court

If an application is refused in the Local Court, a fresh application can be made to the Supreme Court of New South Wales.

The Supreme Court has the power to grant bail for an offence which has been refused by another Court. This means that you must apply to the Local Court first.

An application to the Supreme Court will be prepared using the same legislative framework.

It is important to fully understand your options before making an application to the Supreme court. Once an application is made to a higher court, subsequent applications (including variations) to the local court can only be made in limited circumstances: s 69

Appeals Bail

An application for appeals bail will arise where a person has been convicted and sentenced to a period of fulltime imprisonment in the Local Court. In such circumstances the accused must file an appeal to the District Court and make a subsequent application for release.

The application for release will be heard in the Local Court and most often, it will be heard before the sentencing Magistrate. This can be present some difficulty to the application, and it is best left to an experienced lawyer.

In circumstances where the accused does not appeal against conviction, but rather the severity of sentence, the court will strive to eliminate any risk that the accused serves a period of detention that he or she should not have served: Lane v The Queen [2017] VSCA 170

However, in circumstances where a custodial sentence is inevitable time served can have some significance to the outcome of the appeal. It is important to seek competent legal advice.

Bail following conviction and before sentence (s 22)

In June 2022, the Bail Act was amended to place a limitation on the Court's power to grant bail where a person has been convicted of an offence but awaits sentencing, if the offence is one for which the accused will be sentenced to a fulltime custodial sentence.

You will hear this referred to as a 'section 22 application'.

Before the court makes a decision to detain the accused, it must be satisfied that there will be a sentence of fulltime imprisonment. The effect of the new provision will require the accused to establish special or exceptional circumstances that justify their release.

For the purposes of the Act, 'conviction' will also include a plea of guilty whether or not they are convicted at the time.

Varying bail conditions

Where a person is granted bail subject to conditions they will remain at conditional liberty until the matter has been finalised in court. This can take months, or even years and consequently some bail conditions may need to be reconsidered or varied from time-to-time.

In any situation where a person cannot comply with their bail conditions they will be required to apply to the Court for a variation.

Before the application can be heard in Court, reasonable notice must be given to the other party. For example, where an accused seeks to vary a condition of their bail they will be required to serve Police with notice of the variation.

As in the case of a release application, a variation application should be prepared by an experienced criminal lawyer for best prospects of success.

Where a bail condition has been imposed by a Higher Court it cannot be varied without the consent of both the accused and the prosecutor.

Breach of Bail

Failing to comply with bail conditions is not an offence in of itself, however it will invite the court to redetermine the bail decision.

In the event of a breach, the court may take no action effectively releasing you once again subject to the same conditions or varying the original bail decision. This also includes revoking the bail decision and substituting a new bail decision.

It is an offence to fail to appear before the court unless you have been formally excused. You may escape penalty if you have a reasonable excuse not to appear, however you must be able to prove this to the court.

If you have failed to appear for court and you were not formally excused, you should seek legal advice immediately to prepare for your inevitable arrest. The maximum penalty for failing to appear is the lesser of either the maximum penalty of the offence for which you were granted bail; or 3 years imprisonment or a $3,300 fine.

Bail Act 2013 – Section 40

In a limited number of circumstances, an accused may be granted bail in the Local Court and immediately detained on application to the Supreme court pursuant to s 40. The practical effect is, even though you are granted bail you will not be released from custody until the matter is heard before the Supreme Court.

The application must be listed before the Supreme court as urgently as possible, and will require the supreme court to make a fresh bail decision.

An experienced defence lawyer will guide you in avoiding a s 40 application.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.