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    Our accredited specialist criminal lawyers have put together a complete guide to the law for bail applications in NSW.

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      bail application nsw

      Complete Guide to Bail Applications in NSW

      Our specialist bail application lawyers have an extensive track record and years of experience obtaining bail for clients when other lawyers have been unable to.

      We have obtained bail for:

      • Commercial drug supply cases in the millions of dollars;
      • Serious sexual assault cases which have attracted media publicity;
      • Murder and manslaughter cases;
      • Clients who have breached bail multiple times.

      You can view our recent results for bail applications here.

      We can appear at any bail application for you on short notice, including Parramatta weekend Bail Court and Supreme Court bail. 

      Contact us now to speak to our accredited specialist criminal lawyer who can quickly advise you on the steps to take and material to prepare before the bail application.

      What is bail?

      Bail is a form of conditional liberty which is granted to a defendant when they are charged with a serious offence.

      A person can remain on bail for the amount of time that their case is proceeding before the Court.

      How can someone get bail?

      There are two ways in which you can be granted bail. Firstly, Police can grant a person bail. Secondly, the Court can grant a person bail.

      Can Police grant bail in NSW?

      Yes. Police can grant you bail and impose bail conditions on you. If you believe the conditions are too harsh, or they restrict you from working, an experienced bail lawyer can apply to have these conditions varied at Court. 

      In some cases, criminal lawyers for bail applications can ask the court to ‘dispense with bail’, which means to eliminate bail completely.

      If you are not granted bail by Police, then you will be brought before a Court “as soon as is practicable” and given the opportunity to make a bail application (ie. that day or the next morning).

      An Australian study conducted by Don Weatherburn in 2015 found that there was no discernible increase in the amount of bail refusals since the Bail Act 2013 (NSW) was enacted. 

      It is important that you have the right representation for your first bail application in Court. This is because once you have made a bail application, you will not be allowed to make another application in that same Court except in very specific circumstances.

      Will I get bail?

      In determining whether to grant you bail, the Court must determine whether there are any ‘bail concerns’ present.

      What is a ‘bail concern’?

      Under Section 17 of the Bail Act 2013 (NSW), a bail concern is a ‘concern’ that if you are granted bail, you will:

      1. Fail to appear at any future Court proceedings, or
      2. Commit a serious offence, or
      3. Endanger the safety of victims, individuals or the community, or
      4. Interfere with witnesses or evidence

      Section 18 of the Bail Act sets out the factors that are taken into account when determining whether any ‘bail concerns’ exist:

      1. your background, (ie. criminal history, circumstances and community ties),
      2. nature and seriousness of the offence,
      3. strength of the prosecution case,
      4. whether you have a history of violence,
      5. whether you have previously committed a serious offence while on bail,
      6. whether you have a history of compliance or non-compliance with court orders, (eg. previous bail conditions, apprehended violence orders, parole orders or good behaviour bonds),
      7. any warnings issued to you regarding non-compliance with conditions,
      8. whether you have any criminal associations,
      9. the length of time you are likely to spend in custody if bail is refused,
      10. the likelihood of a custodial sentence being imposed if you are convicted of the offence alleged,
      11. if you have been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,
      12. if you have been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
      13. any special vulnerability or needs you may have including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
      14. your need to be free to prepare for his or her appearance in court or to obtain legal advice,
      15. your need to be free for any other lawful reason,
      16. your conduct towards any victim of the offence, or any family member of a victim, after the offence,
      17. in the case of a serious offence, the views of any victim of the offence or any family member of a victim, to the extent relevant to a concern that you could, if released from custody, endanger the safety of victims, individuals or the community,
      18. the bail conditions that could reasonably be imposed to address any bail concerns
      19. whether you have any associations with a terrorist organisation
      20. whether you have made statements or carried out activities advocating support for terrorist acts or violent extremism,
      21. whether you have any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

      If the Court is satisfied that there are any ‘bail concerns’, then they must then assess whether any bail conditions can be put in place which would mitigate those concerns.

      If the Court finds that no bail conditions would mitigate against one or more bail concerns, then they will find that there is an ‘unacceptable risk’ and will refuse bail.

      What are some examples of bail conditions?

      There are many bail conditions. Some are common such as a residence condition, while others are specific to a person or charge, such as non-association condition. Below are some common bail conditions which are imposed:

      1. You are to reside at a particular address;
      2. You are to report to your nearest Police Station every day;
      3. You are to surrender your passport;
      4. You are subject to a curfew (ie. you cannot leave your house between particular hours);
      5. An acceptable person (a ‘surety’) is to deposit an amount of money with the Court (this money is known as ‘security’);
      6. You are not to enter a particular location;
      7. You are not to associate with certain persons (usually co-accuseds);
      8. If you suffer from a mental illness, you are to comply with any directions of your psychologist or psychiatrist

      What is a bail surety?

      A surety is a term used to describe a person who forfeits (or agrees to forfeit) money (security) to the Court as a condition of your bail.

      The amount of money forfeited will depend on the nature and seriousness of the charges as well as your personal background.

      Amounts can be as small as a few thousand dollars to hundreds of thousands (or even millions) of dollars.

      A property (most commonly a house) can also be put up as security by someone acting as a surety. The person who acts a surety must be an ‘acceptable person’.

      Who can be an ‘acceptable person’ for bail?

      An acceptable person must have no criminal convictions, pending criminal charges or have been subject to bankruptcy proceedings. They must also have known you for some time (ie. more than a few months).

      What is ‘Show Cause’ bail?

      In certain situations, you may be required to ‘show cause’ why your detention is ‘not justified’.

      These situations are primarily based on the offence you are charged with. However, if you have breached bail for another offence, then you may also be required ‘show cause’.

      If you are unable to ‘show cause’, then you will be refused bail.

      This was described in the Second Reading Speech of the Bail Amendment Bill 2014:

      “Division 1A introduces a “show cause” requirement for certain offences. New section 16A provides that for show cause offences bail must be refused unless the accused shows cause where his or her detention is not justified. This shift of onus is an important change.”

      What factors can be used to ‘show cause’ for bail?

      While there is no explicit list of factors which will satisfy the ‘show cause’ requirement, the superior courts have provided some guidance.

      In Rakielbakhour v DPP [2020] NSWSC 323, an excessive delay between charging and when a case will reach Trial was considered sufficient to show cause.

      Further factors can include it being a person’s first time in gaol, a weak prosecution case and health issues which cannot be treated in custody are some examples.

      A combination of factors can also be used to ‘show cause’.

      Contact our team now to see what factors can satisfy the ‘show cause’ requirement for a friend or family member who is in custody.

      What happens if I breach my bail?

      Breaching your bail conditions is treated very seriously by Police and the Courts. Police do have the power to arrest you for a breach of bail.

      However, if the breach is minor, or due to an honest mistake (such as forgetting to report on a particular day), an experienced lawyer can often speak to Police and have them either take no action or issue you with a warning. 

      If you are brought before the Court for a breach of bail, the Court can:

      1. take no action and release you; or
      2. impose further bail conditions and release you; or
      3. revoke your bail.

      What is the penalty for breaching bail?

      If you breach bail by failing to appear in Court, the maximum penalty will be the same as the maximum penalty for the offence for which bail was granted.

      This is however limited to 3 years imprisonment and/or a fine of $3,300.

      If one of your bail conditions is that a surety has given (or agreed to give) an amount of money to the Court, the Court can order that this amount be forfeited.

      How can you vary bail conditions?

      Yes, you can. If you have been granted bail by a Court or by Police, you can make an application to the Court to vary these conditions pursuant to Section 52 of the Bail Act.  

      Some variations are more difficult than others. For example, the Police and the Court will usually agree to allow you to change your residential address.

      Can you travel overseas while on bail?

      If you are on bail and subject to conditions, you will generally not be allowed to travel overseas. This can however be overcome by making a bail variation application to the Court. Police and the Court will usually be reluctant to allow you to travel overseas while you are on bail.

      Our specialist bail lawyers have repeatedly made successful bail variation applications to suspend bail and allow our clients to travel overseas while their case is ongoing.

      If you wish to vary or suspend your bail conditions, contact us now to speak to our team.

      What happens if I am refused bail?

      If you apply for bail in the Local Court and are refused bail, you will not be able to make another bail application in the Local Court unless:

      1. you did not have a lawyer at the previous bail application (and now you do);
      2. new information as to why you should be granted bail can be presented to the court;
      3. there is a material change in your circumstances (or the circumstances of the case) from the initial bail application to now;
      4. if the person applying for bail is a child and they have previously only applied for bail once.

      If you do not satisfy any of these grounds, then you will need to make a Supreme Court bail application. A Local Court bail application can usually be listed within 3 days of filing the appropriate forms.

      By contrast, Supreme Court bail applications are generally heard at least a month after filing.

      What is Supreme Court bail in NSW?

      If you are unsuccessful in your Local Court or District Court bail application, you can file a further application to the Supreme Court of NSW.

      Supreme Court bail applications have stringent requirements. All material that is sought to be relied on must be filed ahead of time.

      This includes character acknowledgements, psychologist or psychiatrist reports, medical documents, letters of acceptance at drug rehabilitation facilities etc. Often detailed written submissions are also required for complex cases.

      Much like the Local Court, you will only have one chance to make a Supreme Court bail application unless you can show that one of the four grounds listed above are met.

      This is why you should consult an accredited specialist criminal lawyer who has a proven track record in making successful Supreme Court bail applications.

      Contact us now to speak to our friendly team and we can begin preparing a Supreme Court bail application for your partner, friend or family member.

      Of course, the above is only a general guide. Our accredited specialist criminal lawyer can begin preparing to represent you in Court and provide immediate advice on what steps we can take to have your friend or family member be granted bail.   

      Contact us now to speak to our friendly team and arrange a consultation by phone, or at our Sydney, Liverpool or Parramatta Criminal Lawyers office.

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