Complete Guide on Bail Applications and Bail Laws in NSW 2020

How Does Bail Work?


The bail application process starts from when police arrest and charge an accused person.

The accused person will then be taken to the police station where the bail sergeant police officer will decide on whether or not to grant bail to the accused person.

If bail is granted at the police station, the accused person will be released with or without bail conditions and will be required to appear in court on the scheduled court date in relation to the criminal charge(s).

If bail is refused at the police station, the accused person will be taken to the nearest local court as soon as possible to make a bail application for a Judge or Magistrate to determine bail.

How to argue in a bail application? During a bail application in court, the court will only grant bail to an accused person if the ‘show cause’ test and ‘unacceptable risk’ test is satisfied.

The ‘show cause’ test is the first test- this test is only required to be considered by the court if the charge is a ‘show cause offence’.

If it’s not a ‘show cause offence’ then the court will go straight to considering the ‘unacceptable risk’ test which is the second test.

The show cause test requires the accused person to give sufficient reasons why continued detention is not justified. In other words, why it’s unjustified to remain bail refused in custody until the end of the court proceedings.

Bail will be refused if the court considers that the show cause test has not been met.

If the court agrees that the show cause test has been satisfied, the court will go on to consider the second test- ‘unacceptable risk’ test.

Bail will be refused if the court considers that the unacceptable risk tests has not been met. This will mean that the accused person will remain in custody on remand until the case is finalised- which can take from months to years depending on the case.

Bail will be granted if the court considers that the unacceptable risk test has been satisfied. If bail is granted, the accused person will be immediately released with bail conditions, but must continue to attend court dates.

In order for the court to be satisfied with the unacceptable risk test, the accused person will need to convince the court that after assessing the bail concerns, there is no unacceptable risk, and that the bail concerns can be mitigated by imposing strict bail conditions.

Bail concerns the court may have include:

  1. Risk of a failure to attend court if granted bail
  2. Risk of committing further offence(s) if granted bail
  3. Risk of endangering or interfering with the alleged victim, witnesses and evidence if granted bail

Bail Meaning – What is Bail?

Once police arrest and charge you for a criminal offence, you’ll be considered an accused person.

Police will then decide whether or not to grant you bail at the police station, namely, whether or not to release you back into the community with or without bail conditions during the court proceedings. 

If police grant bail, you’ll be released immediately but you’ll have to then attend court on your next court date. 

If police refuse bail at the police station, you will be taken straight to the court house to appear before a Judge or Magistrate to determine bail. This will either be on the same day, or the next morning, depending on whether the court is still open by that stage. 

A Court with a Presiding Judge or Magistrate usually sits from 9:30am to 4:30pm. There is usually a morning tea break from 11:30am-12pm, and a lunch break from 1-2pm. Some courts may decide to sit longer on certain days, depending on the work load. 

Attending the police station and going through the police charge process early in the morning will more likely allow sufficient time so that you can appear before the Judge or Magistrate in court the same day (if police refuse bail at the police station).  

The Magistrate in court can then determine bail on the same day. 

If police end up refusing bail at the police station, and if by that time, court has finished for the day, the accused person will likely be required to stay overnight in custody, and then brought before the court the following day. 

It’s always a good idea to be prepared for an urgent bail application before attending the police station, wherever there is an opportunity to do this.  

The court process can take months to years- all the more reason why one would want to be granted bail.

The CDLA team of experienced bail application lawyers Sydney based are an award winning, respected criminal law firm specialising in all serious crime and bail applications for over 2 decades across all court.

 

What Does Bail Mean?

Bail is a legal term used by bail lawyers and Judges that refers to whether or not an accused person facing serious criminal charges is granted or refused bail.  

Or in other words, whether or not the accused person is released from custody or remains in custody on remand during the entire court case. 

Bail can be granted or refused in 1 of 2 situations after being arrested and charged, namely: 

  1. Bail can be granted by police at the police station before the next court date; or 
  2. Bail can be granted at the Court by a Judge or Magistrate if police have initially refused bail at the police station. 

If refused bail, the accused person will remain in custody on remand at least until the criminal charge(s) are finalised in court 

If granted bail, the accused person will be free to leave and released back into the community either with or without any conditions.  

Conditions normally do get imposed if bail is granted- This includes conditions to appear next time in court and not to commit an offence while on bail.  

If the police, or court grants bail, the accused person will receive a bail acknowledgement and then released from custody. 

A bail acknowledgement is a document which provides the details of the Court date in relation to the charge, bail conditions (if any), and explains the consequences of failing to comply with bail. 

The police are required to explain the bail conditions and ensure that the accused person understand them if bail is granted by police at the police station. 

If bail conditions are breached, the accused person can be arrested and taken to court where the court will re-determined bail. The court can then either grant or refuse bail. 

Lawyers can be expensive, but an experienced bail lawyer doesn’t have to be. For a fixed fee bail application lawyer, you only need to google search one and read their google reviews to help make the right decision. 

Contrary to what may be perceived, an experienced bail lawyer should be able to provide fixed fee bail application.

 

Bail Laws- Bail NSW

Bail Laws in NSW are complex and can be difficult for a non-lawyer to understand. 

We’ve simplified the bail laws in NSW for you to understand in this complete guide for bail applications. 

An accused person who wants to get bail normally has only one shot at making a bail application. This is why it’s important to do be properly! 

So, What can an accused person do if initially refused bail? Can a second bail application be made? 

Yes it can! Section 74 Bail Act 2013 allows for a second or subsequent bail application if: 

  • There is a change of circumstances since the last bail application; or 
  • The accused person didn’t have a lawyer during the last bail application, and now does; or 
  • New material or evidence has come to light since the last bail application. 

If refused bail in the Local Court, in some cases there will be higher chance of getting bail on the second go in the Supreme Court.

 

How to Get Bail?

Bail will be granted by a Court if you can satisfy the following two tests in court: 

  1. Show Cause Test (only applies it it’s a ‘show cause’ offence) 
  2. Unacceptable Risk Test
How to Pass the Show Cause Test

To be granted bail, the ‘show cause’ test is the first test the court must be satisfied with before moving to the next step (being the unacceptable risk test) in order to be able to grant bail to an accused person. 

The court is only required to be satisfied as to the ‘show cause’ test if the charge is a ‘show cause offence’ outlined in section 16B Bail Act 2013. 

If it’s not a ‘show cause offence’, then the court can skip straight to considering the second test, being the unacceptable risk test in order to be able to grant bail. 

The show cause test requires the accused person to ‘show cause’ or give sufficient reasons to the court as to why it would be unjustified to keep the accused person on remand in jail (without bail) during the court case proceedings. 

An experienced bail lawyer or criminal lawyer should prepare the bail application in a way that best outlines the main reasons why continued detention of the accused person would be unjustified 

Some of the reasons may include outlining: 

  • Weaknesses of the police evidence. 
  • How long you would end up remaining in jail if refused bail by the time the case finalises. 
  • Your special needs, medical or otherwise, that won’t be available in jail. 
  • Any strong reasons why you need to remain in the community, including to prepare your case, attend a rehabilitation program (in-patient or out-patient basis). 

What is a ‘show cause’ offence? 

  • 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; 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. 

In convincing the court why your continued detention is not justified, you should be prepared to address the court on the following main points referred to as section 18 factors: 

  • 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

 

How to Pass the Unacceptable Risk Test

To be granted bail, the unacceptable risk test is considered the second test for the court to be satisfied with in order to grant bail to an accused person who makes a bail application. 

If the charge is a ‘show cause offence’, then the court will only consider the unacceptable risk test if the first test (‘show cause’ test) is satisfied first. 

If the charge is not a ‘show cause offence’ then the court will skip straight to considering the unacceptable risk test, to determine bail. 

The unacceptable risk test requires the accused person to convince the court to accept that there are no unacceptable risks associated with granted bail to the accused person. 

How is this done? An experienced bail lawyer or criminal lawyer will need to convince the Judge or Magistrate that the bail concerns can be sufficiently reduced or mitigated after considering the following factors of the accused person’s case: 

  • Current or upcoming job; close relationship with family or partner; criminal history, background 
  • Strength or weakness of police case 
  • Seriousness and nature of offence 
  • History of violence 
  • Whether he/she previously committed a serious offence while on bail 
  • Whether he/she has previously breached any past bail conditions, AVO’s, parole of good behaviour bonds 
  • Length of time he/she will likely spend in prison if bail not granted 
  • Likelihood of going to prison if he/she ends up being found guilty or pleads guilty 
  • Any criminal associations 
  • Any special vulnerability such as medical condition 
  • Need to be free to prepare the case and obtain legal advice 
  • Any other needs to be free for a lawful reason 
  • His/her conduct to the alleged victim or family member after the offence 
  • Safety of the alleged victims and community if released 
  • Any bail conditions that if imposed can help address those bail concerns in accordance with section 20A of the Bail Act. 

The 4 main bail concerns of the court are: 

  1. Failure to appear in court if bail is granted 
  2. Commit a serious offence if bail is granted 
  3. Endanger safety of alleged victim(s) or community if bail is granted 
  4. Interfere with witnesses and evidence if bail is granted 

Finally, after assessing the bail concerns in this way, the court will ultimately decide whether to grant bail or refuse bail.  

The Judge or Magistrate will then make one of the following decisions about bail: 

  1. If there is no unacceptable risk”, especially where appropriate bail conditions can be imposed to address those bail concerns, the court will either: 
  2. Grant bail with or without bail conditions, or 
  3. Release you without bail, or  
  4. dispense with bail 
  5. If there is an “unacceptable risk”, the court will refuse bail. 
  6. For certain offences, the court is not allowed to refuse bail. If an accused person is faced with an charge considered to a “right to release offence, bail must be granted.

 

What is a ‘Right to Release Offence’?

right to release offence means, the court must grant bail if an accused person is charged with this type of offence in NSW. 

The court must grant bail if the accused person is charged with any one of the following right to release offences: 

  1. A fine only offence- These are offences that do not carry a jail sentence. 
  2. A summary offence- An offence under the Summary Offences Act 1988, other than an excluded offence. 
    • An excluded offence includes: 
    • Offence of obscene exposure if you have previously been convicted for that offence. 
    • An offence of violent disorder if you have previously been convicted for that offence or of a personal violence offence 
    • An offence relating to knives and offensive implements if you have previously been convicted for those offences or of a personal violence offence. 
    • An offence of custody or use of laser pointer in public place. 
    • An offence of loitering if you are a convicted child sexual offender near premises frequented by children. 
  3. An offence being dealt with by conference under part 5 of the Young Offenders Act 1997. 

If charged with a right to release offencethe court can refuse bail if the accused person has previously failed to comply with a bail condition/bail acknowledgement for a right to release offence.

 

Supreme Court of NSW and Bail

Supreme Court bail is usually the last attempt and final try at making a bail application after having failed to get bail in the Local Court. 

A Supreme Court bail application can only be made after you’ve first tried and failed to get bail in the local court. 

The Supreme Court is the highest court in NSW, and the second highest court in Australia, sitting below the High Court of Australia (the highest court). 

A very experienced Justice/Supreme Court Judge sits in a Supreme Court bail application who will carefully read through the bail application before making a final decision about bail for an accused person. 

In a Supreme Court bail application, the accused person will normally appear in court via an Audio-Visual Link (AVL) where he/she will be able to talk, hear and see everything during the bail application. 

The good news is, that a different Judge will hear the Supreme Court bail application, who will look at the application afresh. This can increase the chances of getting bail if new material is produced.

 

NSW Legislation – One Chance at Supreme Court Bail

You only get one shot at applying for a Supreme Court bail application unless you can show there are further grounds for a second application in the way outlined earlier under section 74. 

Usually when applying for bail at this level, more work and preparation should be done. 

Preparation and filing of documents such as affidavits, title deeds, bank statements, and character references may need to be prepared and presented in the correct way to the Court. 

During the Supreme Court bail application, the accused person may be required to give evidence in court. There are alternative ways of getting this evidence in, such as affidavits. 

It’s important to be aware of the Supreme Court procedures for filing a Supreme Court bail application. 

When filing for a Supreme Court bail application at the Sydney Supreme Court, you’re required tfirst complete and submit the following documents with the Court (which can be done online via email): 

  1. Supreme Court Bail Application Form 
  2. Proposed bail conditions 
  3. Written submissions/arguments 
  4. Any affidavit evidence in support 
  5. Any report in support 
  6. Any character references in support 
  7. If a bail bond is offered for bail (also known as a security from a surety), then a consent letter from the surety should also be attached. 
  8. If this is the second Supreme Court bail application, written submissions outlining the basis for the court to hear the application a second time should be attached. 

In addition to the above, a copy of the above documents must also be served to the Director of Public Prosecutions, surety and anyone whom has agreed to allow the accused person to reside with him/her if bail gets granted. 

Once the above is done, the Supreme Court will then give you a court date called a callover when the case will be first listed to determine how long the bail application will take and to ensure all parties are ready. 

If all parties are ready, the Court will then list the Supreme Court bail application for hearing on another day.  

On the day of the hearing, the Judge/Justice will preside in the Court to hear the bail application.  

After hearing both sides of the evidence and arguments, the Court will end up deciding whether or not to grant bail after going through the ‘show cause’ test (if applicable) and the ‘unacceptable risk’ test.

 

Parramatta Bail Court

As police can and often do arrest and charge people at any time of the day or night, people often do get charged on Friday night and weekends at odd hours. 

The normal operating hours of the court are Monday to Friday 9:30am to 4:30pm. 

When a person is arrested and charged on a Friday night or weekend, the accused person will be taken to a weekend bail court known as Parramatta bail court in Sydney (if police have refused bail at the police station). 

The Parramatta bail court sits with limited Magistrates on Saturdays and Sundays to allow people to make urgent bail applications.  

Without the Parramatta bail court, accused people would end up spending unfortunate time in custody over a weekend before making a bail application in court on the Monday during normal operating hours. 

The Parramatta bail court is located on 2 George St, Parramatta NSW 2150 which is known as the Parramatta Childrens’ Court, situated across the road from the Parramatta Family Court- Garfield Barwick Commonwealth Law Court Building . It’s only a short walk from the Parramatta train station and is located in the Parramatta Justice Precinct. 

An accused person who makes a bail application will usually appear at the Parramatta bail court via audio visual link.

 

Why Can Police Grant Bail?

The law in NSW allows certain police officers to be able to make a decision to grant or refuse bail (with or without bail conditions) at the police station, immediately after the accused person is arrested and charged– this is the first opportunity for bail to be granted. 

Section 43 Bail Act 2013 (NSW) says that a police officer can grant or refuse an accused person bail at the police station, if the police officer is: 

  1. At least the rank of sergeant and present at the police station; or 
  2. In charge of the police station for the time being. 
  3. A police officer is not allowed to make a bail decision (grant or refuse) if: 
  4. A court has already made a decision on bail for the accused person; or 
  5. Bail has bene dispensed with after already appearing in court; or 
  6. If the accused person’s been arrested under a warrant to bring the person before a court for sentencing (unless the officer considers there are exceptional circumstances to justify granting bail). 

If the accused person is under the influence of alcohol or drugs at the time of arrest, the police may defer making a decision on bail, but can’t then cause a delay in bringing the person before a court where a Magistrate or Judge can then decide on bail.

 

Bail Conditions

The Judge or Magistrate can grant bail either with or without bail conditions. 

The bail conditions are there to allow a court to more safely grant bail if appropriate. 

If bail is granted, the accused person will be released on bail immediately. 

The bail conditions will continue until the case is determined or if the conditions get varied in court. 

There are various types of bail conditions in NSW that a court can impose, including the following: 

  • Reporting condition: To report to the nearest police station on certain days and times of the week. 
  • Residential condition: To reside at a specified address. Which can be either a home or a residential rehabilitation facility for drugs and alcohol or other. 
  • Curfew condition: To be inside the specified residence during a specified time frame. i.e. 8pm-8am. 
  • To surrender passport to police or court. 
  • Security condition (Bail bond): For an acceptable person (surety) to deposit a certain sum of money or other form of security with the court. 
  • Prohibition with associating with certain specified people. 
  • Subject to drug and alcohol tests. 
  • Prohibition from going within a specified geographical area. 
  • No to approach any point of international departure i.e. airport. 

Once bail is granted, the accused person will be released from custody after he/she signs the bail undertaking to comply with the bail conditions.

 

Bail Conditions NSW

The court can only impose bail conditions that the court considers are safe enough to adequately address the bail concerns.  

The bail conditions the court imposes must be:  

  • Reasonable and proportionate to the offence  
  • Appropriate to the bail concerns  
  • No more onerous than necessary  
  • Reasonably practicable for the accused person to comply with 
  • There must be reasonable grounds to believe that the conditions are likely to be complied with (these are considered section 20A factors of the Bail Act 2013).

 

What is a Bail Bond and How Do Bail Bonds Work?

A bail bond is also called a ‘security’ that either the accused person or an acceptable person (surety) deposits to the court, as part of the bail conditions (if such a condition is imposed). 

A court will only impose a bail bond/security condition like this if there is a bail concern that the accused person will fail to appear in court if released on bail.  

How much of a bail do you pay? This will really depend on the case and how much the surety is willing to deposit 

The more of a bail concern (risk of accused person failing to appear in court) there is, the more bail bond or security the court may require to sufficiently mitigate that risk. 

Surety bail or bail bond can be in any of the following forms: 

  1. An agreement be entered into for a specified sum of money to be deposited and forfeited to the court if the accused person fails to appear in court. This means no money is required to be given to the court at the time of getting bail. 
  2. A specified sum of money be deposited with the court at the time of getting bail with an agreement that the sum will be forfeited to the court if the accused person fails to appear in court. This required the sum to be given to the court before the person is released on bail after bail is granted. 
  3. A security such as equity in a property be deposited to the court (other than money) with an agreement that it will be forfeited to the court if the accused person fails to appear in court. 

This security (bail bond) will remain with the court and only returned after the case is finalised provided the accused person has not failed to appear in court. 

Once bail is granted by the court, a recent bank statement will normally be required to be presented to the court registry to show where the money is coming from. 

The court can refuse to accept the bail bond if the money have suddenly been transferred into the bank account within a few days. This is because the court may consider it suspicious.

 

How Do You Get Bail Money Back?

The Court registry will usually issue a receipt for payment of bail bond money/security. 

Once the case has finalised, a surety may ask for a refund of the bail money. To do this, the surety or person authorised by the surety must: 

  1. Obtain a letter from the court the case was finalised in confirming the outcome. 
  2. Have a copy of the receipt of bail deposit  
  3. Have sufficient identification with signature 
  4. Present all this to the court the bail money was deposited in 
  5. If someone other than the surety will be doing this or the money is to be refunded to a different bank account, the court will need to also be presented with an authority letter signed and dated by the surety giving such consent. 

When asking for a refund of bail money, procedures may vary between different court registries.  

If it’s bail money a surety wants refunded, then the court will usually refund it by way of an electronic funds transfer to the nominated bank account after presenting the receipt and confirming identification. A cheque can also be issued. 

Where the money was deposited to the Supreme Court following a Supreme Court bail application, a refund can be obtained by the surety by completing and lodging a form called ‘application for bail refund form’. In addition, 2 types of identification will be required to present to the court confirming identity of the person wanting the refund. The court will either transfer the refund electronically (EFT) or by cheque. 

If a surety wishes for the money to be deposited to another persons’ bank account, the court will require an authority letter to do this by the person who initially deposited the sum.  

If the bail bond was a property used as security, the surety can get a ‘refund’ by taking the following steps: 

  1. Complete a ‘withdrawal of caveat’ with the NSW Land Registry Services. 
  2. Have two forms of identification disclosing signature 
  3. Attend the Supreme Court Registry at level 5, 184 Phillip St, Sydney and ask a deputy registrar to sign and execute the ‘withdrawal of caveat’ form 
  4. Lodge the ‘withdrawal of Caveat’ form with the NSW Land Registry Services

 

Surety Bail and Responsibilities

A surety/acceptable person for the bail bond has certain responsibilities under section 86 Bail Act 2013, including: 

  • Must not dispose of the money or security (this carries a maximum penalty of 2-years jail) 
  • Must not allow the bail security to be disposed of (this carries a maximum penalty of 2-years jail) 
  • To inform the court as to his/her identity and residential address. 

Anyone who either compensates or agrees to compensate the surety (acceptable person) against the bond money/security being forfeited will face a maximum penalty of 3-years jail.

 

How Long Do You Get for Breach of Bail? – What Happens if Bail is Breached

A failure to attend court when required to under a bail condition, without reasonable excuse carries a maximum penalty of 3-years jail and/or $3,300 fine. 

The maximum penalties are rarely imposed by courts, especially for first-time offenders. 

If an accused person simply forgot to or was too sick to report at the police station, strict action by police can be avoided simply by calling and letting the police station know as soon as possible afterwards. 

If unable to report due to medical condition, the accused person can provide police with a medical certificate to avoid further action being taken. 

If bail conditions are breached, police can do any one of the following: 

  1. Take no action 
  2. Issue a warning 
  3. Issue a notice requiring the accused person to attend court 
  4. Issue a court attendance notice –if he/she failed to appear in court 
  5. Arrest the accused person (without a warrant), and then take him/her to court as soon as possible 
  6. Seek an arrest warrant and arrest the accused person before taking him/her to court as soon as possible. 

Which one of those 6 options police take in the event of a breach of a bail condition will depend on: 

  • The seriousness of the breach  
  • Whether there was a reasonable excuse for the breach  
  • Personal circumstances of the accused person; and  
  • Whether the police officer can take another option other than arrest. 

If police decide to arrest the accused person following a breach of bail, the accused person will be taken to court as soon as possible where the Judge or Magistrate can re-determine bail. 

At court, he/she can provide the court with an explanation on why bail was breached in order to persuade the Judge/Magistrate to grant bail again either with the same or amended bail conditions. 

If bail is refused, the accused person will remain in custody for the entire court case unless another bail application is made and granted later. 

Any security bond or bail bond money that was deposited by a surety can then be forfeited to the court. 

If this is going to happen, the court will notify the surety by letter, providing 28-days’ notice to object to this. 

If the order to forfeit the bond/bail money is confirmed, and there are unpaid amounts then the state debt recovery office (SDRO) can take further action against the surety.

 

How to Change Bail Conditions

Sometimes it is far too difficult, impossible or simply unnecessary to continue complying with certain bail conditions. This might be as a result of a change of circumstances i.e. new job or change of residence or health factors. 

An accused person who is out on bail can change or delete the bail conditions, but it must and can only be done by going to court for an order with sufficient grounds. 

To vary or change bail conditions, the following steps must be taken first: 

  1. Complete and lodge a variation of bail form with the Local Court. This will outline the bail conditions sought to be changed. 
  2. Serve a copy of that form to the other side (prosecution/Office in Charge) 
  3. The court will then list the bail variation hearing in court. 
  4. The accused person is required to attend court where the Magistrate or Judge will hear the application. The prosecution may consent or oppose the variation. 
  5. Court will decide whether or not to vary the bail conditions. 
  6. Bail conditions should be practical and appropriate for the situation.  

Section 51 Bail Act 2013 allows the court to varychange or delete bail conditions. 

For more details on this topic, or if wanting to make a bail application in Sydney, speak to bail application lawyers in Sydney.

 

How is a Bail Application made in Court?

As bail lawyers Sydney based, we are familiar with the bail application process. 

At the hearing of a bail application, the police prosecutor will hand a police facts sheet and a copy of the accused persons’ criminal record to the Court at the beginning of the bail application. 

The police facts sheet will provide reasons as to why the police have charged the accused person and the circumstances of the alleged offence. it’s important to remember that these are allegations, and are not proven, nor accurate. 

Documents may also be handed up to the court on behalf of the accused person in support of the bail application to be granted.  

After reading both sides of the material/evidence, the court will hear from the prosecutor who will either oppose or consent to bail. 

If the police prosecutor is of the view that the accused person should remain in custody, he/she will make submissions to the court outlining the reasons why bail should be refused. 

Sometimes the prosecutor will consent to granting bail. The court will still make the ultimate decision as to whether or not to grant bail.  

If the prosecutor consents to granting bail, it generally increases the chances of the court granting bail too. 

The accused person’s lawyer will then give submissions to the court as to why bail should be granted. 

Here, the aim is to outline to the court why bail should be granted with evidence to back up everything that is said by the lawyer for the accused person.  

Each of the court’s bail concerns should be addressed by the accused persons’ lawyer to the court so that the court can have enough confidence in granting bail. 

Once all of the submissions and material have been considered, the court will make a bail determination to either grant or refuse bail. 

The 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”. 

If enough evidence can be produced to show why there is no unacceptable risk in releasing the accused person on sensible bail conditions, then bail is more likely to be granted by a court.

Under the new Bail Laws in NSW, to be granted bail by the court, the following 2 tests must first be satisfied:

  1. First, if your charge is a “show cause offence”, you must show the court why your continued detention is not justified; and
  2. 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”.

 

Bail Act

The Bail Act 2013 is the main legislation governing and allowing NSW Court the discretion to grant bail to people who’re accused of serious crimes. 

The Bail Act 2013 NSW is complex but also straight forward once familiar with it. 

As outlined earlier in this article, in order to convince the court to grant bail in a bail application, an accused person must pass the bail act ‘show cause’ test, and then the bail act 2013 ‘unacceptable risk’ test. 

In order to pass both tests to get bail, the accused person should address the court on the section 18 Bail Act factors, outlined earlier in this article. 

In summary, those factors are considered in assessing the bail concerns in determining firstly whether continued detention is unjustified (first test), and secondly whether there is an unacceptable risk (second test). 

The court will only grant bail if it agrees that continued detention is not justified, and then determines that there is no unacceptable risk after assessing all bail concerns (by considering the s18 factors).

 

Case Study of Bail Application: Bail Application Example

The case of R v Melmeth [2015] NSWSC 1762 is an example of a Bail Act 2013 Show Cause Offence situation whereby cause was shown, and bail granted. 

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, the following evidence was introduced to the court: 

  • 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: Strict bail conditions were proposed 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 by the court. 

Looking for a bail application lawyers Sydney based? Contact our friendly team 24/7.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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