When arrested and charged with an offence, an individual will be detained in prison or released on bail. The granting of bail allows the individual to be at liberty amongst the community while their matter progresses in court.

Once released on bail, an individual will need to follow certain conditions, such as residing at a specific address or reporting to a police station. A third party such as a friend or relative may need to ensure that the individual follows the condition of bail. This person is called the “surety”. The surety may also deposit money on the offender’s behalf to the court. 

If the offender fails to follow the set conditions once released on bail, there will be a further warrant for the individual’s arrest, and the money of the surety will be forfeited.

How do I get bail?

Only a “bail authority” is allowed to grant you bail.

A bail authority can be an authorised justice, a police officer or a court.

After you have been charged with an offence, the police can decide to grant you “police bail.” This means you will be released back into the community until you need to attend court.

Alternatively, they can decide to keep you at the police station in custody until you can be brought before the court.

You must be brought before the court “as soon as practicable” which is usually the same day or the following morning.

Our lawyers can then attend court and apply for you to be released back into the community on bail. This is called a bail application.

What factors determine whether or not I get a bail?

When determining a bail application the Court will be given a copy of the Police Fact Sheet and a copy of your criminal history.

The Court will progress on the basis that you are presumed innocent. If you have an extensive criminal history or the allegations are very serious, you are less likely to be granted bail unless you can present a strong bail application.

When determining your bail application, the Court needs to assess “bail concerns”. A bail concern is the concern that, if released from custody, you will:

• Commit a serious offence;
• Endanger the safety of victims, individuals or the community;
• Interfere with witnesses or evidence;
• Fail to appear at any future Court proceedings

In assessing the above “bail concerns” the Court needs to take the following into account:

• Your background (criminal history, circumstances and community ties),
• the nature and seriousness of the offence,
• the strength of the prosecution case,
• whether you have a history of violence,
• whether you have previously committed a serious offence while on bail,
• whether you have a history of compliance or non-compliance with court orders, such as previous bail conditions, apprehended violence orders, parole orders or good behaviour bonds,
• any warnings issued to you regarding non-compliance with conditions,
• whether you have any criminal associations,
• the length of time you are likely to spend in custody if bail is refused,
• the likelihood of a custodial sentence being imposed if you are convicted of the offence alleged,
• if you have been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,
• 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,
• 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,
• your need to be free to prepare for his or her appearance in court or to obtain legal advice,
• your need to be free for any other lawful reason,
• your conduct towards any victim of the offence, or any family member of a victim, after the offence,
• 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,
• the bail conditions that could reasonably be imposed to address any bail concerns
• whether you have any associations with a terrorist organisation
• whether you have made statements or carried out activities advocating support for terrorist acts or violent extremism,
• 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 is an “unacceptable risk” after assessing bail concerns, the Court must refuse bail.

Bail Application Process

The two main issues the court must consider when deciding whether to grant bail are whether the offence is a “show cause” offence and whether the individual poses an “unacceptable risk”.

Show Cause Offences

For some offences, the magistrate will assume that the individual should not be released on bail. These offences are called “show cause” offences. If charged with a show-cause offence, the individual must explain to the court why denying bail and keeping them in prison is not justified. The onus is on the accused rather than the police. The court takes many different factors into account, including:

• Whether the individual suffers from a serious medical condition
• Whether the individual needs to support and care for their family
• The circumstances in which the offence took place
• The strength of the prosecution case

If the accused cannot “show cause, “ bail will be refused. Show cause offences are usually serious, involving sexual misconduct, violence, or firearms. Additionally, if the accused is charged with another offence while on bail or parole, the new offence will be a show cause offence. The full list of show cause offences can be found in section 16B of the Bail Act 2013 (NSW).

What conditions can be placed upon my bail?

The court can choose to grant bail with or without conditions.

Bail conditions are imposed to mitigate an “unacceptable risk.”

They need to be proportionate to the offence for which bail is being granted, reasonable and appropriate for the unacceptable risk for which they are being imposed.

Examples of bail conditions include:

• A condition that you do or refrain from doing something
• A condition that you reside at a particular address that is deemed suitable by the court

Who is an acceptable person?

The court can impose a bail condition that requires an “acceptable person” to provide a character reference or to forfeit a specific amount of money.

An acceptable person is someone who has known you at least several months and who has no outstanding criminal charges, criminal convictions, or bankruptcy proceedings against them.

The acceptable person must state in that reference how long they have known you for, how they know you, and why they believe you are likely to comply with bail.

If the “acceptable person” has agreed to forfeit a specific amount of money, they will need to complete an acceptable person form.

What if I don’t comply with my bail conditions?

If you don’t comply with a bail condition, the police can either:

• Issue you with a warning, or
• Issue a notice to you requiring you to come back before the court, or
• Apply for a warrant to arrest you, or
• If they believe that you have committed a further offence, issue a court attendance notice requiring you to come back before the court, or
• Arrest you and take you back before the court, or
• Take no action

If the police decide to bring you back before the court, the court will evaluate your bail conditions and can:

• Vary your existing bail conditions or impose further conditions, or
• Release you subject to your existing bail conditions, or
• After considering all other possible alternatives; revoke or refuse bail.

Normally, a breach of a bail condition does not constitute a criminal offence, unless the breach was for a failure to appear before the court when required and you had no reasonable excuse for failing to appear.

What if I can’t comply with my bail conditions?

When you can’t comply only on a particular occasion

In some circumstances, you may be too sick to report to police or attend a drug or alcohol program, or you might suffer an accident or mishap which makes it difficult for you to get home in time for your curfew.

If this is the case, you should contact the police station where you are supposed to report and inform them of your situation.

However, even if you have a good excuse, you may not get off the hook unless you can show that the illness was very serious, or the problem was unavoidable that you could not reasonably be expected to meet your bail conditions on that day.

When you can’t comply with a condition at all

In certain situations, your circumstances can change so that you cannot comply with your bail conditions – for example where you move houses.

In these cases, our lawyers can arrange for your matter to be brought back to the court for a “bail variation.”

This is where we make an application to have one or more of your bail conditions changed.

We can also contact the prosecution or police to see whether they will agree to the changes or agree not to oppose your bail altogether.

What if I’m refused bail?

Generally, you only get one chance at bail in the Local Court unless you can show that there is a change in circumstances.

Some of the changes in circumstances for another bail application to be made in the Local Court include: 

• Where you did not have a lawyer at the previous bail application, and you now have one
• Where there is new relevant information that was not previously presented to the court
• Where you or your loved one is a child and you have only applied for bail once previously
• Where circumstances relevant to bail have changed since the first application

If there are no changes in circumstances, you can appeal for your bail application to be re-heard in the Supreme Court.

Supreme Court bail applications

You will only have one chance at Supreme Court bail, unless you are able to show that there are further grounds for a bail application.

It’s therefore important to ensure that you are being represented by a reputable criminal defence lawyer, who has considerable experience making successful Supreme Court bail applications.

How do I get my bail money/property back?

If you or another person forfeited property or money as security for your bail application, and you complied with your bail conditions, you are entitled to get your property back.

Even if you deposited money as cash, it will be refunded as a check. 

To get your cheque, you need to:

• Go to the Registry of the Court where your case was finalised, obtain your ‘bail refund letter’ and fax or send that letter to the Supreme Court Bails Matters Counter; then
• Go to the Supreme Court Bails Matters Counter with
  • (a) the original receipt for your bail, and 
  • (b) two forms of identification with your signature. 

If you or your acceptable person lodged property as security as bail, the court would have recorded its legal interest in that property.

In order to get your property back, you must:

• Go to the Registry of the Court where your case was finalised, obtain your ‘bail refund letter’ and fax or send that letter to the Supreme Court Bails Matters Counter; then
• Complete a ‘Withdrawal of Caveat’ form; then
• Go to the Supreme Court Bails Matters Counter with
  • (a) your completed ‘Withdrawal of Caveat’ form, and 
  • (b) two forms of identification with your signature. 

The Deputy Registrar will sign the ‘Withdrawal of Caveat’ form and return it with your bail documents; then

• Take all documents to the ‘Land and Property Information’ building to have the ‘caveat’ removed.

Bail concerns and the unacceptable risk test

If the accused is able to show cause, the court must then decide whether there are any “bail concerns” that make the accused an unacceptable risk. These are concerns that if released from custody, the accused may:

• Commit another offence,
• Endanger the safety of other people,
• Interfere with the judicial process, or
• Not attend court.

The court may impose specific conditions that are workable, proportionate, and appropriate to address such concerns. 

If the bail authority finds that the accused poses an unacceptable risk despite the imposition of conditions, bail will be refused.