The New South Wales Legislation defines bail as the authority to be at liberty for an alleged offence that the accused has been charged with pending the outcome of their court proceedings. The decision to grant bail can come about in one of two ways.
When the Police initially arrest you, they can either release you without bail, grant bail or refuse bail. The police officer must ensure that decision be made as soon as possible following the arrest and charge of the accused person.
Whilst in custody, the police officer must give you the opportunity to contact a lawyer and obtain legal advice. If the police grant you bail, then they will impose certain conditions upon your release. For example, you are to surrender your passport, you cannot go within 100m of a certain place or you cannot contact any co-offenders or prosecution witnesses. These are known as bail conditions.
You must comply with your bail conditions to ensure that you maintain your conditional liberty. Serious consequences apply if you breach your bail conditions.
For bail lawyers Sydney, call our dedicated 24-hour phone line on 0449 593 845 to engage a Senior Lawyer if you require urgent legal advice or assistance out of ordinary business hours.
Another way that a grant of bail can come about is through the courts. If the Police refuse to grant you bail, then the only other option is to seek court bail. In order for this to happen, you will need to be brought before a Magistrate who will make the ultimate decision as to whether you are granted court bail. This generally occurs immediately after the police refuses you bail. In the event you are arrested late hour of the night, then you will be brought before the court the next morning.
It is important to note that you can only make a bail application once, unless you can prove any changes in your circumstances that has come about from the original application.
Our lawyers regularly appear in bail applications Sydney and throughout NSW, from the Local Courts including Parramatta Bails Court, Regional Bails Court, through to Supreme Court of NSW.
At Criminal Lawyers Sydney, we have specialised bail application lawyers who have vast experience in preparing, filing and presenting bail applications to the courts. Even if you have been arrested out of business hours and refused police bail, we can prepare and attend weekend bail application on your behalf. Call our dedicated 24-hour phone line on 0449 593 845 to find out more.
Factors that determine grant of court bail
Depending on the severity of the offence committed, it will be classified as either a show cause offence or a non-show cause offence.
A non-show cause offence is where the Court must grant bail unless it can prove that you pose an unacceptable risk.
If an accused is charged with a ‘show cause’ offence, the defence must show cause as to why their detention is not justified, pursuant to section 16 of the Bail Act 2013 (NSW).
‘Show Cause’ offences include:
- Any offence that carries life imprisonment.
- Any serious indictable offence involving sexual intercourse with a person under the age of 16;
- Any serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused has already been convicted of a serious personal violence offence.
- Any serious indictable offence involving a weapon.
- Any offence that involves the cultivation, supply, possession, manufacture, or production of a commercial quantity of a prohibited drug or plant.
- Any offence that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation, or supply of a commercial quantity of a serious drug.
- Any serious indictable offence committed by an accused who is on bail or parole.
- Any indictable offence committed while accused is subject to a supervision order, or the offence of failing to comply with a supervision order.
- Attempting to commit, assist, aide, abet, counsel, procure, solicit, be an accessory to, encourage, incite, or conspire to commit any of the above offences.
- Any serious indictable offence committed whilst someone is subject to a warrant for their arrest.
Some examples of factors that can be used to show detention is not justified include it being an accused persons’ first time in custody, the length of time they are likely to spend in custody pending trial, a will to enter residential rehabilitation, the likely outcome if an accused person were to be found guilty on the charges, and their need to be at liberty to prepare their defence, maintain employment or provide and care for their family.
If the defence has shown cause, the court then moves to the ‘unacceptable risk’ test.
The unacceptable risk test involves considering whether, if released from custody, the accused person will:
- fail to appear at any proceedings for the offence,
- commit a serious offence,
- endanger the safety of victims, individuals, or the community,
- interfere with witnesses or evidence.
In assessing these concerns, the court can have regard to factors including the accused person’s background, criminal history, circumstances and community ties, the nature and seriousness of the offence, the strength of the prosecution case, whether the accused has not complied with bail or other court orders previously and the need for the accused person to be free for lawful reasons.
Stringent bail conditions can be imposed to ameliorate certain concerns the court may have for the grant of bail.
If the court refuses bail, then a second bail application in the local court cannot be made unless the court is satisfied there are a material change of circumstances, including new evidence in support of the second application.
However, if the Local Court refuses bail, then an accused person can still apply for Supreme Court bail.
In NSW, a person refused bail by police over a Friday night or weekend will be given an opportunity to make a weekend bail application.
Call our bail application lawyers Sydney office on (02) 9152 8619 or our dedicated 24-hour contact number 0449 593 845 for urgent legal advice.