Criminal proceedings can often take several months or years to be finalised. It is important to apply for a bail application to ensure that you are awaiting the outcome of your trial in the comfort of your own home and not in custody.
You can give yourself the best chance for granted bail by contacting our experienced criminal defence team at S.A.S Lawyers. We provide honest and realistic advice and can assist you through the process of a bail application. It is our goal to deliver a strong defence for your case and provide the best possible outcome for your situation.
Bail is the temporary release of an individual from custody who has been charged with an offence and is awaiting to appear in court. The Bail Act 2013 (NSW) governs the award or refusal of bail. The purpose of the Bail Act 2013 (NSW) is to provide a framework for the court to determine whether an accused should be detained or released, with or without conditions while waiting for their matter to be heard before the court.
If you have been charged with an offence, it is the role of the police or Department of Public Prosecutions (DPP) to determine whether you are suitable to be granted bail. If bail is initially revoked, a Magistrate will determine to uphold this decision or grant bail. This is when a bail application is made to be presented to the court.
If you have committed a show cause offence, bail is refused unless you can show cause why your detention is not justified (Bail Act 2013 (NSW) s 16A). If you can show cause why your detention is not justified, the bail authority must make a bail decision in accordance with division 2 (the unacceptable risk test).
What is a show cause offence?
Section 16B of the Bail Act 2013 (NSW) provides a complete list all the offences that are determined as a show cause offence. These offences will include any offence that is punishable by life imprisonment and several serious indictable offences including offences that involve serious sexual offences, certain drug supply offences and certain firearm and weapon offences.
What is the show cause requirement?
The show cause requirement applies only for show cause offences, and it requires the accused person seeking bail to show cause why his or her detention is not justified. A failure to show cause will result in an automatic refusal of bail. If the show cause requirement is satisfied, the court then considers the unacceptable risk test which is the assessment of bail conditions.
The Supreme Court has determined a range of factors that can overcome the show cause requirement, including:
- First time offender
- Weak prosecution case
- Serious health issues that cannot be treated in custody
What is the unacceptable risk test?
The unacceptable risk test is governed by division 2 of the Bail Act 2013 (NSW). Section 17 of the Bail Act 2013 (NSW) states that a bail authority must, before making a bail decision, assess any bail concerns. As per section 17(1) of the Bail Act 2013 (NSW), a bail concern is a concern that an accused person, if released from custody will:
- Fail to appear at any proceedings for the offence, or
- Commit a serious offence, or
- Endanger the safety of victims, individuals or the community, or
- Interfere with witnesses or evidence
In the assessment of bail concerns, the bail authority must consider whether the accused person presents an unacceptable risk of committing a bail concern if released from custody, while also considering matters listed under section 18 of the Bail Act 2013 (NSW).
The matters under section 18 is exhaustive but some matters include:
- The individual’s criminal history
- The nature and seriousness of the offence
- Whether the individual has previous history of compliance or non-compliance with any court orders
- The length of time the individual is likely to spend in custody if bail is refused
As per section 19 of the Bail Act 2013 (NSW), a bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns that there is an unacceptable risk. If it is determined that the accused person does not present an unacceptable risk, the bail authority must grant bail (with or without the imposition of bail conditions), or release the person without bail, or dispense with bail, as stated under section 20 of the Bail Act 2013 (NSW).
What conditions might be placed upon bail?
The conditions imposed on your bail must be only the minimum necessary to address the concerns of the court. The conditions must also be practical, proportionate, and appropriate to the offence that you have been charged with and the concerns of the court. Common bail conditions include:
- Periodic reporting to the police station
- Residing at a specified address
- Not to associate with specific people (including witnesses or co-accused)
- Not to go within a certain distance of a specific place
- Not being able to leave the state and/or country
- Promise to pay or forfeiture a specified amount of money (also known as a Bail surety)
- Engage in rehabilitation (such as a drug or alcohol program)
- Offering a Character acknowledgement
- Surrender Passport
- Regular Drug and Alcohol Testing
- Not enter the driver’s seat of a vehicle
If you have any further questions in regards to bail applications or want to discuss your personal situation with proficient and experienced lawyers, contact S.A.S Lawyers on (02) 9060 9799 or email our Principal Lawyer at email@example.com.
If a police officer believes on reasonable grounds that you have failed to comply with, or are about to fail to comply with, a bail acknowledgement or a bail condition, under section 77 of the Bail Act 2013 (NSW), they may:
- decide to take no action in respect of the failure or threatened failure, or
- issue a warning to the person, or
- issue a notice to the person (an application notice) that requires the person to appear before a court or authorised justice, or
- issue a court attendance notice to the person (if the police officer believes the failure is an offence), or
- arrest the person, without warrant, and take the person as soon as practicable before a court or authorised justice, or
- apply to an authorised justice for a warrant to arrest the person
Matters a police officer will consider when deciding whether to take action and what action to take include:
- The relative seriousness or triviality of the failure or threatened failure
- Whether the person has a reasonable excuse for the failure or threatened failure
- The personal attributes and circumstances of the person, to the extent known to the police officer
- Whether an alternative course of action to arrest is appropriate in the circumstances
Failure to attend Court
Under section 79 of the Bail Act 2013 (NSW), it is an offence to fail to appear before a court in accordance with a bail acknowledgment without reasonable excuse. The maximum penalty for failing to appear is the maximum penalty for the offence for which bail was granted but cannot exceed 3 years imprisonment &/or a maximum fine of 30 penalty units ($3,300).