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Bail

What is bail?

Bail is the authority or term given to conditions imposed on you that permits you to stay in the community when there has been an allegation (charge) made against you. If bail is granted, by the police or courts, and the person can meet any conditions, then the person can remain in the community until the charge is finalised.

Are all accused persons on bail?

No. Some people are “refused bail”, meaning they remain in custody pending determination of their matter. Other people are, after being charged, released by police without any bail conditions.

Who can grant bail?

The police or a court.

Will I get bail?

Some offences are so serious that it is all but unheard of for a person to get bail (such as murder, or Commercial Supply of a Prohibited Drug). Some minor offences (such as fine only offences) have a “right to release”, meaning you legally have to be released to bail

Other than the above, a large number of variables will decide whether the police or the court. These include:

  • Do you have a criminal record?
  • Have you breached bail before?
  • How serious is the offence?
  • If found guilty, how likely are you to be sentenced to imprisonment?
  • How strong is the case against you?
  • What support do you have in the community?
  • Are you, or is someone else, willing to offer a financial guarantee that you will comply with your bail?

What happens if a person is granted bail but breaches a condition?

If a condition of bail is breached the person will be arrested and put before a court for the question of bail to be revisited. The court has a range of options:

  • Reinstate bail as originally granted, or
  • Vary bail in some way, or
  • Refuse bail.

What is the purpose of bail?

In historical terms, it is to ensure a person attends court in the future to answer the charge that has been laid against them. Over time, it has also become a controlling mechanism to ensure a person is not an unacceptable risk
In assessing whether a person is an unacceptable risk, the court considers the risk you pose of:

  • Failing to appear at proceedings for the offending; or
  • Committing any further serious offences; or
  • Endangering the safety of victims, individuals or the community; or
  • Interfering with witnesses or evidence.

Can bail be granted for any offence?

Where the offence charged is a “show cause offence”, there is a heavy onus on the person to show why they should be granted bail. In fact, the law says bail is to be refused unless cause for bail to be granted is shown.

A “show cause” offence does not mean bail will not be granted, but it makes it less likely.

What conditions can be imposed?

Conditions can only be imposed if there is a bail concern and then only to address the particular bail concern or concerns. Conditions could be:

  • A promise to forfeit money by the offender or an approved person
  • To deposit money by the offender or a surety
  • To reside at a particular address
  • To abide by a curfew
  • To abstain from alcohol/drugs
  • To regularly report to police
  • To surrender your passport and not apply for one
  • To not attend a particular location
  • To avoid particular people

When can a release application be made?

If bail has been refused by the police, an application for bail can be made at the first court appearance, which will be the day of arrest or the following day

It will be a situational question as to whether a bail application should be made at the first opportunity

If the matter is a serious matter, and particularly if the alleged offence is a show cause offence, it may be a better idea to take some time to prepare the application by gathering evidence of sureties, referees, accommodation options and banking information, all of which may be needed to give the court comfort that a bail concern or concerns can be met.

Can more than one release application be made to the court?

Yes, but if you make release application to the Local Court for bail and it is refused, you cannot make another unless there are grounds for a further application.

The grounds for a further release application to the same court are:

  • The person was not legally represented at the previous application, but is now, or
  • Material information that has not been previously presented is to be on this occasion, or
  • Circumstances relevant to bail have changed since the previous application, or
  • The person is a child and the previous application was made on the first appearance for the offence.

NOTE: multiple release applications can be made to authorised justices.

Can the prosecution make a further detention application?

If a detention application has been made by the prosecution and refused, and the matter is in the same court, a further detention application can be made under the following circumstances:

  • Material information that has not been previously presented is to be on this occasion, or
  • Circumstances relevant to bail have changed since the previous application.

NOTE: multiple detention applications can NOT be made to authorised justices.

Can bail be granted after a conviction or sentence?

This is not uncommon, though far from guaranteed, in the Local Court if a person lodges a notice of appeal to the District Court. Each matter will turn on its own factual circumstances. Whilst still possible, it is far less likely that bail will be granted in the District or Supreme Courts following a conviction and sentence.

When should a release application be made?

There are differences of opinion on this question. Some are of the view an early application is the best application, others prefer to wait a short while and see what offers, in terms of conditions, can be made and met.

What is certain is that advice should be sought quickly and from an experienced solicitor who will be able to recognise the legal and human situation presented.

In some situations, the best advice may be that no application should be made, at all. For instance, if the person is pleading guilty and jail is inevitable, the time served in custody will count towards the sentence.

The key to this question is seeking advice from a practitioner who has experience, knows the courts and is respected. Bail can be an expensive exercise and the result is highly discretionary. If a release application is made and refused and there are no grounds to make another application, the next step is to appeal to the Supreme Court.

It is best to make the first application the best it can be. Sometimes, this can be done quickly, but on other occasions is may require the gathering together of people and resources and take time.

What happens at a release application?

  • The magistrate or judge will receive the police fact sheet or brief which outlines the allegations, court attendance notices which outline the charge or charges the person faces, a criminal and or traffic history, if any exists, and other material, if any, relevant to proving a charge.
  • If the prosecutor opposes the release the matter progresses. If the prosecutor does not oppose bail but wants conditions, submissions are made by both the prosecutor and the person seeking release through their lawyer or in person.
  • The person seeking release does not usually give evidence in these matters – to do so would be to expose that person to questions they will not want to answer and failure to do so will, at the very least, reflect badly and harm the release application and may cause further charges to flow.
  • The person seeking release, through their lawyer, can make submissions to the court about the strength of the prosecution case.
  • The person seeking release may tender affidavits of people willing to provide surety (or they may give evidence), evidence of bank accounts, evidence of a placement at residential rehabilitation or other evidence that mitigates a bail concern.
  • Once the material is tendered both the prosecution and person seeking release (through their lawyer) get to make a submission to support their position.
  • The magistrate or judge will then make their determination.
  • If the matter is before a magistrate and the release is refused, a decision is made whether or not, on another occasion, a further application is made in the Local Court, or if there should be an appeal to the Supreme Court.
  • If the release is granted, and the person can satisfy the conditions (if any), they will be released. If not, they remain in custody until such time as the conditions are met.
  • If the matter is before a District Court judge and the release is refused, a decision is made whether or not, on another occasion, a further application is made in the District Court, or if there should be an appeal to the Supreme Court.
  • If the release is granted, and the person can satisfy the conditions (if any), they will be released. If not, they remain in custody until such time as the conditions are met.

What is our approach to release applications?

It is our view a release application should not, except in extenuating circumstances, be made unless the application is thoroughly prepared. Thoroughly prepared will mean different things in different matters but may include:

  • Affidavits from –
    • Employers
    • Relatives or friends acting as sureties
    • Family to explain hardships
  • Documentation
    • Bank statements
    • Drug rehabilitation placement
    • Medical reports
    • Psychiatric reports

If you have been charged with an offence, and you would like assistance to understand your options with regard to bail, J Sutton Associates, have a NSW Law Society recognised Accredited Specialist in criminal law, with decades of experience acting for people in these situations. Call (02) 8080 8055 for personalised advice and service.

 

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