BAIL

What is bail?

Bail means a right to be released from custody pending finalisation of your matter provided that you obey any court imposed conditions including returning to court as and when required.

Who may grant me bail?

The initial decision as to bail will ordinarily be made by the police. If the police refuse you bail, you will then be brought before the next available court and will have an opportunity to make a bail application. At court the magistrate will read the alleged facts and hear from you or your lawyer before deciding whether or not to grant bail.

How many times can I apply for bail?

Generally speaking you can only make one application for bail in the Local Court. Section 22A of the Bail Act 1978 (NSW) says the court must refuse to entertain an application for bail if an application has already been made by the accused and dealt with by the court unless there are grounds for a further application. Grounds for a further application under section 22A(1A) are:

• you were not legally represented when you first applied for bail but you are now; or
• relevant information is to be presented which was not presented to the court previously; or
• circumstances which are relevant to the grant of bail have changed since the previous application was made.

What are the criteria for bail?

Section 32 of the Bail Act sets out the criteria the court must consider when determining your bail application. They are broken down into four general categories which are:

• Likelihood you will appear – relevant considerations will be your background, community ties, residence, family, employment, prior record, prior failures to appear at court, circumstances of the offence, the strength of the police case, and the likely penalty for the offence if convicted.
• Your interests – relevant considerations will include the time you would have to spend in custody if refused bail, freedom to prepare for court and obtain legal advice, and whether you are in danger of physical injury or in need of physical protection.
• Protection of the victim and victim’s relatives
• Protection and welfare of the community – relevant considerations will include the nature and seriousness of the offence (in particular whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon), whether or not you have breached any bail conditions, whether you are likely to interfere with evidence, witnesses or jurors, and whether you are likely to commit any serious offence while on bail.

What are the conditions on which bail can be granted?

When granting bail the court will always require that you sign an agreement to appear before the court at the time and place specified on your bail undertaking. Other conditions that may be imposed when bail is granted include:

• that you agree to observe specified requirements in relation to your conduct whilst on bail (such requirements can include residing at specified premises, reporting to the police, abiding by a curfew, or attending counselling or rehabilitation);
• that an acceptable person (other than yourself) acknowledge that you are responsible and likely to comply with your bail conditions;
• that you agree to forfeit (whether with or without security) a specified amount of money if you fail to comply with a bail undertaking;
• that an acceptable person agrees to forfeit (whether with or without security) a specified amount of money if you fail to comply with a bail undertaking;
• that you surrender your passport to an authorised officer of the court.

The following additional conditions may be imposed if you qualify for drug or alcohol assessment, treatment or rehabilitation (such as the MERIT program):

• that you agree to subject yourself to an assessment for treatment or rehabilitation; and
• that you agree to participate in treatment or rehabilitation.

What is the likelihood of bail?

This depends significantly on the offence with which you are charged and any criminal record or court history you may have. The Bail Act creates 5 categories of offences and these are referred to as presumptions. These 5 presumptions are:

• a right to bail;
• a presumption in favour of bail;
• neutral presumption (no presumption either for or against bail);
• a presumption against bail;
• bail only to be granted in exceptional circumstances.

The law relating to bail presumptions is complicated and can be difficult to interpret. We have tried to simplify it for you but if you are unsure which presumption applies to you please call Greenfield Lawyers on 9708 6832 to arrange an appointment with a solicitor to give you detailed and comprehensive advice on the issue of bail.

Right to be released on bail for minor offences

It is important to note that this section does not create a right to unconditional bail. You have the right to be released on bail if:

• you are charged with an offence that is not punishable by a sentence of imprisonment (except where there has been failure to pay a fine);
• you are charged with an offence under the Summary Offences Act 1988 (NSW), whether punishable by a sentence of imprisonment or not;
• you are before the court for the breach of a good behaviour bond or revocation of a community service order.

However, you will not have the right to be granted bail for minor offences if:

• you are before the court for an offence of failing to appear before the court;
• you have previously failed to comply with a bail undertaking or condition imposed for this offence;
• you are incapacitated by intoxication, injury or use of a drug, or are otherwise in danger of physical injury or in need of physical protection;
• you are convicted of the offence or if your conviction has been stayed;
• you are serving a custodial sentence in connection with another offence and are likely to stay in custody for a longer period than that for which bail would be granted for the new offence.

Even though you may have lost the right to be released on bail for one of the above reasons, this does not mean that bail cannot be granted.

A presumption in favour of bail

Where this presumption applies you are entitled to be granted bail unless you have been convicted of the offence or the court or authorised officer is satisfied, having regard to the section 32 criteria above, that there is reason for refusing bail.

This presumption applies to all offences except those referred to below. It also applies to you if you would have been entitled to be released on bail for a minor offence but for a previous failure to comply with a bail undertaking or failure to appear for that offence.

A neutral presumption

The presumption in favour of bail does not apply where:

• another presumption applies – e.g. presumption against bail or right to release;
• you have been charged with certain domestic violence offences – there will be a neutral presumption if the court is satisfied that you have a history of violence (conviction for violent offence in last ten years) OR have been violent to the victim in the past OR have breached a bail condition already imposed for the protection of the victim;
• you have failed to appear in court for this offence or have been convicted of the offence of not appearing in court previously;
• you are charged with an indictable offence and have one or more prior convictions for an indictable offence;
• at the time of the alleged offence you were on bail, on parole, serving a sentence (whether in custody or not), or subject to a good behaviour bond or intervention program order;
• you are charged with a specified offence – there is a large number of offences specified in section 9 of the Bail Act. The specified offences include some sexual assault offences and drug offences where the amount of drugs involved is at least twice the indictable quantity.

A presumption against bail

Where there is a presumption against bail, bail will normally be refused. The strength of the prosecution case will be the main consideration in any bail application where there is a presumption against bail. It will be up to you, or your solicitor, to convince the court that bail should not be refused.
The presumption against bail applies to:

• repeat property offenders – you are deemed to be a repeat property offender if you are accused of 2 or more serious property offences arising out of different circumstances, and bail is sought for one or more of those offences, and you have been convicted of one or more serious property offences within the last 2 years. A “serious property offence” is defined in the Bail Act;
• offences committed in the course of riots or civil disturbances;
• any person on lifetime parole who is charged with an offence for which a penalty of imprisonment may be imposed;
• any person who is charged with a breach of extended supervision orders or interim supervision orders (an offence under section 12 of the Crimes (Serious Sex Offenders) Act 2006;
• certain drug, terrorism and firearms offences as outlined in sections 8A and 8B of the Bail Act.

Bail to be granted in exceptional circumstances

The court will grant bail only if there are exceptional circumstances if you have been charged with:

• murder;
• a serious personal violence offence (as defined in section 9D of the Bail Act) where you have previously been convicted of a serious personal violence offence;
• an attempt to do the above;
• an offence under a law of the Commonwealth, another State/Territory or another country which is similar to the above.

What if bail is pending appeal to the Court of Criminal Appeal or High Court?

Bail will not be granted if you have an appeal pending unless there are special or exceptional circumstances justifying the grant of bail.

Can I be released with no bail?

Yes, in certain circumstances bail may be dispensed with.

If I’m granted bail can the prosecution appeal?

The prosecutor can ask the court to stay the magistrate’s decision to grant bail pending a review. This only applies to a person appearing on a:

• first appearance; and
• on a serious offence; and
• when a police officer or legal practitioner appearing on behalf of the Crown immediately informs the court that a request for a review of the magistrate’s decision is to be made to the Supreme Court.

A stay will only come into effect if the prosecutor gives the magistrate a copy of written approval to seek a review from an authorised officer at the same time the application to stay is made. If a stay application is made you will remain in custody pending the review.

What if I’m refused bail?

You can either make a further application to the Local Court (subject to the limitations outlined above) or you can make an application to the Supreme Court. An application to the Supreme Court is a much more formal process and it can be a number of weeks before the matter is able to be listed. Unlike Local Court applications, Supreme Court applications are generally restricted to only one application except in exceptional circumstances.

What if I breach my bail?

If you are in breach of any bail conditions any police officer has the right to arrest you and charge you with breach of bail. If you are arrested for breaching your bail you will be brought before the next available court and there will ordinarily be a re-determination of bail.

I’ve been granted bail but need to change the conditions, what can I do?