WHAT IS BAIL?

In NSW, bail is governed by the provision of Bail Act 2013 (Act).

Section 7 of the Act defines bail as authority to be at liberty for an offence.

Upon arrest and charging of the accused, the Police may:

  • Release the accused without bail, or
  • Grant the accused bail with conditions, or
  • Refuse the accused bail.

If the Police refuse bail to the accused, the Police must present the accused before a Court as soon as practicable.

When presented before the Court, the accused may make a release/bail application.

If the accused is charged with a show cause offence, the accused must show cause why their detention is not justified. Section 16B of the Act lists all the offences to which the show cause requirement applies.

The most common scenario which engages the show cause requirement is when the accused is alleged to have committed a serious indictable offence when they are already on bail or on parole.

A serious indictable offence means an indictable offence that is punishable by a term of prison of 5 years or more.

To show cause, the accused can rely on one factor or a combination of factors. The Courts have held the following to be persuasive in determining the accused showing cause:

  • Prior good character,
  • Past bail compliance,
  • Need to care for family or the need to seek medical treatment,
  • Delay in finalising the proceedings,
  • Seriousness of the offences,
  • Attending employment, counselling, rehab,
  • Strength of the Police case,
  • Bail conditions proposed.

If the accused has not been charged with a show cause offence or the accused shows cause, the Court will then consider if there is an unacceptable risk of any of the following bail concerns materialising:

  • 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.

To determine if there is an unacceptable risk of any bail concerns materialising, the Court will consider:

  • The accused background, criminal history, circumstances, and community ties,
  • The seriousness of the offence/s,
  • The strength of the prosecution case,
  • Whether the accused has a history of violence,
  • Whether the accused has committed any offences while previously on bail,
  • The accused history of bail compliance,
  • The accused criminal associations,
  • The length of time the accused will stay in custody pending trial,
  • Any special needs of the accused whether due to age or mental health,
  • The need for the accused to be free to prepare their defence or for any other lawful reason.

If the Court makes a finding that there is an unacceptable risk of any bail concerns materialising, then the Court will refuse bail.

If the Court makes a finding that there are bail concerns that do not raise to the level of unacceptable risk, then the Court will release the accused on bail with conditions.

Bail conditions can include:

  • Residence condition,
  • Reporting condition,
  • Curfew condition,
  • Non association condition,
  • Abstinence condition,
  • Surety condition,
  • Restriction on movement condition,
  • Electronic monitoring condition,
  • Restriction on communication condition,
  • Enforcement condition.

If the accused has been bail refused at the Local Court, the accused has the right to make a release application to the NSW Supreme Court.

For a consultation with a Bail Lawyer, call AMA Legal on (02) 8610 3764.

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