By Jimmy Singh and Tayla Regan
What is Bail?
Where police charge you for a criminal offence, you become accused of an alleged offence.
As a result, the Bail Act 2013 (NSW) is engaged, and a bail process starts.
This means that, depending on the allegation or criminal charge, you will either be put into prison (refused bail), or released into the community during the entire court process (granted bail).
The court process can take months to years- all the more reason why one would want to be granted bail.
If you’re released from custody, you may be released with certain conditions that you must comply with during the court process. Breach of these conditions can have serious consequences against you. Sometimes you can also be released on bail without any conditions.
The police will first decide to grant you bail or refuse you bail at the police station.
If police refuse you bail, they will keep you in custody. If this happens, then they are required to bring you before the court as soon as possible on the same day or the next day, when a Magistrate is available. The Magistrate or Judge at court can then consider granting you bail with or without conditions.
For this reason, it’s highly advisable to attend the police station early in the morning if you believe that you will be charged.
Attending and going through the police charge process early in the morning will more likely allow sufficient time so that you can appear before the Magistrate in court the same day (if police refuse you bail at the police station). The Magistrate in court can then decide on granting you bail if you make a bail application.
If police end up refusing you bail, and if by that time, court has finished for the day, you will likely be required to stay overnight in custody, and then brought before the court the following day.
It’s therefore always preferred to be released on a grant of bail so that you can carry on with your life, work, family commitments, and better prepare your case with direct and efficient contact with your lawyer.
Released on Bail at the Police Station
The decision to release you on bail is initially decided by a police officer at the police station after you are charged. For police to decide on whether to grant or refuse you bail at the police station, he/she must be at least the rank of sergeant.
After you have been charged with an offence, the police are required to make a bail decision as soon as possible.
Where you’re under the influence of alcohol or drugs at the time, the police may defer making a decision on your bail, but they can’t then cause a delay in bringing you before a court where a Magistrate can then decide on bail.
If the police, or court grants you bail, you’ll be given a bail acknowledgement and then released.
A bail acknowledgement is a document which provides the details of the Court date for your charge, your bail conditions (if any), and explains the consequences of failing to comply with bail.
The police are required to explain your bail conditions and ensure that you understand them.
If you breach any of those conditions, you may be arrested and taken to court where the court will re-determined you’re bail. The court can then either grant or refuse you bail.
What Happens if Police Refuse Bail?
You can be refused to be released on bail by the police or the court.
Upon arrest, the police may refuse to release you from police custody. This is called ‘bail refused’.
If this is the case, the police will hold you in custody until you can be brought before the court for your release to be determined by a Magistrate. The police are required to have you stand before the court as soon as possible (generally the same or next day).
Once in court, you then have the option to make a formal bail application.
If you’re faced with this situation, it is vital to seek legal advice immediately from an experienced bail lawyer to assist you with making a strong bail application.
Making a Bail Application in Court and Getting Bail
A bail application is where you apply to the Court and request the Magistrate or Judge to grant bail and release you from custody during your court process.
Under s74 Bail Act, you can only make one bail application in the local court, so make sure it’s done properly.
The law doesn’t allow you to make a second bail application (asking the Court to release you) unless:
- There is a change of circumstances since your last bail application; or
- You didn’t have a lawyer representing you the last bail application, and you now have one on second application; or
- There is new material now available which wasn’t available in the previous bail application to the court;
In order to maximise your chances of getting bail, it’s important get a specialist bail lawyer to make the application on your behalf to the court.
How is a Bail Application made in Court?
At the hearing of your bail application, the police prosecutor will hand a police facts sheet and a copy of your criminal record to the Judge if you decide to make a bail application in court.
That police facts sheet will provide reasons as to why the police have charged you and the circumstances of the alleged offence. it’s important to remember that these are allegations, and not proven as correct.
Documents may also be handed up to the court on your behalf to support your request to be released on bail. It’s important here to be completely prepared with documents, and affidavits before court to get the best chance at getting bail.
After reading the material, the court will hear from the police prosecutor who will either oppose or consent to the bail.
If the police prosecutor believes that you should not be released from custody and remain locked up, he or she will make submissions to the court outlining the reasons why you shouldn’t be granted bail.
Sometimes the police prosecutor will consent to you being released on bail. The court will still make the ultimate decision to release you. Where the police agree to your release, this generally will help your chances of being granted bail by the Court.
Submissions will then be made to the court by your lawyer in support of granting bail.
The aim is to explain to the court why you should be granted bail by addressing why the court would not have any concerns in granting you bail.
Where the court or police express concerns surrounding your release, such as you committing a further crime while on bail, your lawyer will offer the court certain bail conditions that may address those concerns.
A sum of money known as ‘surety’ may be offered to the court to secure your bail. Other conditions may be offered to increase your chances of getting bail.
Once all of the submissions and material have been considered, the court will make a bail determination to either grant you bail or refuse you bail.
What will the Court Consider When Deciding on Bail?
Former Attorney General, Brad Hazzard was reported expressing his concerns, “there is no greater concern for the community than alleged offenders on serious offences still walking free around the community”.
Under the new Bail Laws in NSW, to be granted bail by the court, the following 2 tests must first be satisfied:
- First, if your charge is a “show cause offence”, you must show the court why your continued detention is not justified; and
- Secondly, for all charges, (unless the charge is a “right to release offence”), the court is satisfied that if you’re released on bail, there will be no “unacceptable risk”.
How to Pass the Show Cause Test
Where you’re charged with any of the following offences, you will be required to convince the Court why your continued detention is not justified:
- A charge that is punishable by life imprisonment; or
- Certain serious charges (such as a charge of a sexual nature with a minor, or one that involves firearms or weapons); or
- A serious personal violence offence, where you have been convicted previously of the same; or
- Certain drug charges nsw; or
- A charge that is punishable of a term of imprisonment of 5 or more years, and at time of this charge you were on bail or on parole.
These offences are known as a ‘show cause offences’.
If the offence your charges with does not fall under one of those categories, you will not be required to satisfy this first test, and you will go straight to the second test.
In convincing the court why your continued detention is not justified, you should be prepared to address the court on the following points:
- Your criminal history, your background, community ties
- The weakness or strength of the police case so far
- The seriousness of the alleged offence
- Whether you have a history of violence and whether you have previously committed offences while on bail, or any history of not complying with court orders
- Whether you have any criminal associations
- Likely period you will end up spending in prison if refused bail pending your court case
- Likelihood of you getting a prison sentence if found guilty and sentenced in court later
- Any vulnerability or needs you have i.e. being aboriginal, your youth, mental health issues or other health problems
- Need to be free for other reasons, including prepare your case with your lawyer
An experienced bail lawyer will carefully address those factors by analysing your case before court. Often this required careful preparation involving affidavits and letters from other people.
The following case shows an example of one situation whereby cause was shown.
The case involved a 30-year-old female, Ms Melmeth, who was charged with Intent to Cause Grievous Bodily Harm and Detain in Company. She had been held in custody 6 months prior to making a Bail Application.
Due to the nature of the offence, Ms Melmeth was required to show cause as to why being held in custody was not justified.
On an application for bail, her lawyer brought forward the following evidence:
- Evidence of her serious ill health: Ms Melmeth has Type 1 Diabetes and during the course of 6 months in custody, there were no attempts made to treat her condition. Dr’s letters were relied upon to show the seriousness of her illness, however she provided evidence that she experienced blurred vision, slurred speech, dizziness and serious physical symptoms on a daily basis. The argument was that the treatment she required could not be adequately addressed in prison and was causing a serious decline in her health.
- Stringent bail conditions: Ms Melmeth’s lawyer proposed a series of strict bail conditions to be placed upon her. Some of those included, daily reporting, to live with her father, a strict curfew, not to drink or take drugs, be subject to regular drug and alcohol testing and not to associate with the co-accused or victim.
The above matters were enough to satisfy the ‘show cause’ requirement, and Ms Melmeth was granted bail.
How to Pass the Unacceptable Risk Test
This second test requires the court to be satisfied that after considering any concerns, whether there is an ‘unacceptable risk’. If after assessing the bail concerns, the court finds there is no unacceptable risk, you will be granted bail.
The court will first consider whether there is a concern that you:
- Will fail to appear in court if granted bail
- Commit further serious offences
- Endanger the safety of the alleged victim, individuals or community
- Interfere with witnesses or the evidence
After assessing those bail concerns, if any of those concerns can’t be sufficiently addressed by imposing adequate conditions and restrictions (as proposed bail conditions on you), the court will find there to be an unacceptable risk, and bail will be refused.
In convincing the court that there is no unacceptable risk, you should be prepared to address the court on the same factors noted above (in the show cause test).
In addition, it’s recommended you also prepare affidavit(s) for an acceptable person willing to provide a security of a sum of money to persuade the court to granting you bail. Sometimes that security can be the equity of a property that you can offer.
It’s also a good idea to prepare a document with a list of proposed bail conditions ready to hand up to the court.
What Bail Conditions can the Court Impose?
If the Court grants you bail (releasing you from custody), you may be required to comply with certain bail conditions. Bail conditions the court can impose include:
- Report to the police station on certain days and times of the week;
- Undergo drug or alcohol tests;
- You may be required to be in your home between certain hours of the day;
- You may be prohibited from associating with certain persons;
- You may be required to be admitted to a residential rehabilitation facility to address drug or alcohol issues;
- You or someone else (an acceptable person) may be required to deposit a sum of money to the court- only if the court is concerned you may not appear in court next time. This money is then kept with the court and returned when the case is finalised. The money will not be returned if you fail to appear in court.
- may need to be deposited to the Court during the bail period. This is known as surety and will generally not be returned if your breach your bail;
- You may be required to surrender your passport to police;
- You also may not be allowed to travel interstate or overseas during that period of time.
These bail conditions generally expire after your matter has been finalised in Court.
As you generally only get 1 chance at a bail application in the local court. It’s vital to get legal advice from an experienced bail lawyer as early as possible.