Bail is when you (or your loved one) are released from custody until your case is finalised.
You normally only get one chance at bail so it’s important to obtain the strongest possible representation from criminal lawyers who are specialised and experienced in bail applications.
The lawyers at Sydney Criminal Lawyers regularly appear in bail applications throughout NSW – from Parramatta Bails Court to the Supreme Court of NSW.
We have an extremely high success rate in bail applications and will give you (or your loved one) the best chance at getting bail.
Click on the links below for more information about bail and bail applications:
The law says that only a “bail authority” is allowed to grant you bail.
A bail authority may be a police officer, an authorised justice (such as a court registrar), or a court.
After you have been charged with an offence, the police may decide to grant you “police bail.” This means that you will be released back into the community until you have to attend court.
Alternatively, they may decide to keep you in custody at the police station until you can be brought before the court.
You must be brought before the court “as soon as practicable.” This is usually the same day or the following morning.
Our experienced criminal defence lawyers can then attend court and apply for you to be released back into the community on bail.
This is known as a bail application.
Under the new Bail Act, the main factor that the court will look at when determining a bail application is whether or not you are considered to be an “unacceptable risk.”
You may be deemed to be an “unacceptable risk” where the court believes that, if granted bail, you may:
- Fail to appear in court when required, or
- Commit a serious offence, or
- Endanger the safety of victims, individuals or the community, or
- Interfere with witnesses or evidence
In assessing whether or not you are an “unacceptable risk,” the court can only consider 12 factors, which can be grouped into three broad categories – the likelihood that you will appear in court on the next occasion; your interests; and the protection of the victim and the community generally.
The 12 matters that the court can consider are:
- Your background, including your criminal history, personal circumstances, and your community ties (for example, your family situation and whether you have to care for children)
- The nature and seriousness of the offence that you have been charged with
- 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 previously breached bail acknowledgements, bail conditions, apprehended violence orders (AVOs), parole orders or good behaviour bonds
- How long you are likely to spend in custody if bail is refused
- The likelihood of a custodial (prison) sentence being imposed if you are found guilty of the offence
- If you have been found guilty of the offence and if you have lodged an appeal against the conviction or the sentence that was imposed, and whether the appeal is likely to be successful
- Whether you have any special vulnerabilities – for example if you are a young person, an Aboriginal or Torres Strait Islander, or you have a cognitive or mental health impairment
- Whether you have a need to be free to prepare for your appearance in court or obtain legal advice
- Whether you need to be free for some other lawful reason.
If, after considering these factors, you are not deemed to be an “unacceptable risk,” the court may choose to release you without bail, dispense with bail or grant bail with conditions.
If you are deemed to be an “unacceptable risk,” the court will then consider whether the risks can be sufficiently mitigated (reduced) by the imposition of bail conditions.
If the court does not believe that the risks can be mitigated by the imposition of bail conditions, it will refuse bail.
For certain offences, there is a “right to release” – this means that the court cannot refuse bail for the following offences:
- Fine-only offences
- Offences under the Summary Offences Act 1988 other than “excluded offences”
- An offence that is being dealt with by conference under Part 5 of the Young Offenders Act 1997
The court may choose to grant bail with or without conditions.
Bail conditions can only be imposed in order to mitigate an “unacceptable risk.”
They must be reasonable, proportionate to the offence for which bail is being granted, and appropriate for the unacceptable risk for which they are being imposed.
Examples of bail conditions that the court can impose include:
- A condition that you do or refrain from doing something – for example, a condition that you do not enter a certain area or that you do not associate with particular people, or that you attend a drug or alcohol program
- A condition that you or an acceptable person agree to forfeit a specified amount of money (known as surety) if you do not appear in court
- A condition that you reside at a particular address that has been deemed suitable by the court
- A condition that you surrender your passport before being released
- A condition that you provide character references from acceptable persons which state that you are likely to comply with bail
- An “enforcement condition” – e.g. to report to police on a regular basis, to undergo regular drug and alcohol testing or to comply with other police directions
As noted above, the court may impose a bail condition that requires an “acceptable person” to provide a character reference or to forfeit a specified amount of money, known as surety.
An acceptable person is someone who has known you for some time (at least several months) and who has no criminal convictions, outstanding criminal charges or bankruptcy proceedings against them.
If the “acceptable person” is providing you with a character reference, they must state in that reference how long they have known you for, how they know you, and why they believe that you are likely to comply with bail.
If the “acceptable person” has agree to forfeit a specified amount of money (known as surety), they will have to complete an acceptable person form.
If you breach a bail condition, the police may choose to either:
- Take no action, or
- Issue a warning to you, or
- Issue a notice to you requiring you to come back before the court, 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
- Apply for a warrant to arrest you, or
- Arrest you and take you back before the court
The matters that the police may consider in deciding what action to take include:
- The seriousness or triviality of the breach
- Whether you had a reasonable excuse for the breach
- Your personal attributes and circumstances
- Whether an alternative course of action to arrest is appropriate in the circumstances
If the police choose to bring you back before the court, the court will evaluate your bail conditions and may choose to:
- Release you again subject to your existing bail conditions, or
- Vary your existing bail conditions or impose further conditions, or
- After considering all other possible alternatives; revoke or refuse bail.
Generally, a breach of a bail condition will not constitute a criminal offence, unless the breach was for a failure to appear before the court when required and you did not have a reasonable excuse for failing to appear.
If you fail to appear before the courts and you do not have a reasonable excuse for doing so, you may face heavy penalties under the law.
The maximum penalty for failing to appear before the court is the same as the maximum penalty for the offence for which bail was granted.
However, the maximum term of imprisonment that can be imposed is 3 years, and the maximum fine that can be imposed is $3,300.
The Magistrate, Judge or Justice may also order that any amounts that you or your surety agreed to give up are forfeited.
The Court will notify you by post of any such order.
You have 28 days to lodge an objection to the order.
If you do so, the Court can (a) revoke the order, (b) vary the order (possibly reducing the amount forfeited) or (c) confirm the order.
If the order is not revoked and there are unpaid amounts, the State Debt Recovery Office may take action against you and/or your ‘surety’.
From time to time, circumstances may change which make it difficult for you to comply with bail conditions on a particular occasion or altogether.
Where you can’t comply on a particular occasion only
In some situations, you might be too sick to report to police or to attend a drug or alcohol program, or you may suffer an accident or mishap which makes it difficult for you to get home in time for your curfew.
In these cases, you should contact the police station where you are supposed to report and inform them of your circumstances.
If you were attending a drug and alcohol program, you should also inform the program coordinator.
If you were unable to comply with a bail condition because you were sick, you should obtain a medical certificate as soon as possible and present it to police.
However, even if you have a medical certificate or a good excuse, you may not get off the hook unless you can show that the illness was so serious, or the problem was so unavoidable that you could not reasonably be expected to meet your bail conditions on that day.
Where you can’t comply with a condition at all
In certain situations, your circumstances may change so that you cannot comply with your bail conditions.
Examples include where you move houses, or where you start a new job and the working hours are outside your curfew.
In these cases, our experienced criminal lawyers can arrange for your matter to be brought back before the court for a “bail variation.”
This is where we apply to have one or more of your bail conditions changed.
We can also contact the police or the prosecution to see whether they will agree to the changes or agree not to oppose your bail altogether.
Our expert lawyers will then advise you of the chances of getting your bail varied, advise you of any risks that the prosecution may oppose the bail, and arrange and conduct the application in court.
You usually only get one shot at bail in the Local Court unless you are able to show that there are further grounds for a bail application.
There are four possible “further grounds” for a bail application to be made in the same court:
- Where you did not have a lawyer at the previous bail application, and you now have a lawyer
- Where there is new relevant information that was not previously presented to the court
- Where circumstances relevant to bail have changed since the first application (for example, where a dependant has fallen seriously ill and you are required to look after them)
- Where you or your loved one is a child and you have only applied for bail once previously
If there are no further grounds, you can make an appeal for your bail application to be re-heard in the Supreme Court.
At Sydney Criminal Lawyers, we regularly make bail applications in the Local and Supreme Courts.
Our lawyers have an unparalleled success rate when it comes to getting bail for our clients, even in serious criminal matters.
If you are refused bail in the Local Court, our lawyers can apply to the Supreme Court on your behalf for a Supreme Court Bail Application.
If you are refused bail in the Local Court, our experienced bail lawyers can apply to the Supreme Court for bail.
Again, you will only have one chance at Supreme Court bail, unless you can 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.
At Sydney Criminal Lawyers, we believe that we have the highest success rate in successfully obtaining bail in the Supreme Court.
We guarantee that you will be represented only by one of our senior lawyers, who have been recognised for their expert knowledge of bail laws and extensive experience making successful bail applications.
Our lawyers will thoroughly prepare all bail applications and deliver a compelling bail application in court.
Our lawyers can assist you in obtaining any materials that will maximise your chances of being granted bail – for example, we can advise you of “acceptable persons” who you can obtain a character reference from or reside with if granted bail.
We can also advise these persons on how to write character and residence letters to ensure that you have the best possible shot at obtaining bail.
We can also help you arrange any documentation or certificates that support your case and increase your chances of obtaining bail; for example, where you have attended or wish to attend a rehabilitation program.
If you or another person forfeited money or property as security for your bail application, and you stuck to your bail conditions, you are entitled to get your property back.
Money will be refunded as a cheque, even if you deposited it as cash.
To get your cheque, you must:
- Go to the Registry of the Court where your case was finalised, obtain your ‘ bail refund letter’ and send or fax that letter (or arrange for the Court to send or fax it) to the Supreme Court Bails Matters Counter (4th Floor, Law Courts Building, Queens Square, Sydney; fax 9230 8060); 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 would rather get your cheque from your nearest Local Court, you must write to the Bails Clerk, GPO Box 3, Sydney 2000, attaching a copy of your ‘bail refund letter’. In that case, you will need to wait 7-10 days for the refund, and you will still have to show the original bail receipt and identification.
If you or your acceptable person lodged property as security as bail (such as the title deed for a house), the court would have recorded its legal interest in that property.
This record is known as a “caveat” and prevents you from selling the property.
In order to get back your property and remove the caveat, you must:
- Go to the Registry of the Court where your case was finalised, obtain your ‘bail refund letter’ and send or fax that letter (or arrange for the Court to send or fax it) to the Supreme Court Bails Matters Counter (4th Floor, Law Courts Building, Queens Square, Sydney; fax 9230 8060); then
- Complete a ‘Withdrawal of Caveat’ form, which are available from legal stationery shops and the Supreme Court Bails Matters Counter; 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 together with your bail documents; then
- Take all documents to the ‘Land and Property Information’ building (formerly the ‘Land Titles Office’) Queens Square, Sydney (across Macquarie Street) to have the ‘caveat’ removed.
You generally only get one shot at a bail application – so it’s important to ensure that you are being represented by a reputable criminal defence lawyer who has considerable experience making successful bail applications.
At Sydney Criminal Lawyers, we regularly make Local and Supreme Court bail applications.
We guarantee that only our senior lawyers will represent you at your bail application.
Our senior lawyers have been recognised as outstanding advocates and have extensive experience making successful bail applications.
Our proven track record of obtaining bail for clients in even the most serious criminal matters is a reflection of our lawyers’ in-depth knowledge of bail law and experience in this field.
Our lawyers will guide you through the bail process from start to finish – including advising you of your rights at the police station, collecting relevant materials for your bail application, making the bail application in court, and, where necessary, applying for Supreme Court bail.
We can also assist you in obtaining references from acceptable persons and guide these persons in how to write an appropriate and compelling letter.
In cases where your offending was the result of a drug or alcohol problem, we can assist you in getting into rehabilitation and obtaining documentation from rehabilitation centres which may support your bail application.
Our dedicated lawyers have been able to obtain bail for clients who have been charged with serious criminal offences such as murder, drug importation and robbery.
For the best result in your bail application, contact our bail experts today on (02) 9261 8881 and book a FREE first conference to discuss your case.
The Bail Lawyers at Sydney Criminal Lawyers are always up-to-date with the changes in bail laws and can provide you with the highest quality legal advice about your particular bail application.
Below is an outline of bail presumptions in NSW.
Your chances of getting bail depend partly on the type of offence/s you are charged with.
For certain minor offences, there is a ‘right to bail’ (Bail Act (s8); which means that you must be released on bail if you are charged only with those offences except in very limited circumstances eg you previously breached bail conditions (s8(2)(a)(i)), or you require physical care or protection (s8(a)(ii)).
On the other hand, for certain drug offences there is a presumption against bail (s8A), which means that you are not entitled to bail unless the police and/or the Court are convinced (often by a lawyer through a Court application) that, despite the seriousness of the offence, you should nevertheless be granted bail.
For many other offences, there is no presumption either way; leaving the police or the Court to decide whether, on the ‘balance of probabilities’, bail should be granted (ss9(1), 9A).
Such offences are sometimes said to have a neutral presumption.
However, for most offences the Bail Act presumes that bail will be granted (s9(2)); in other words, it says that bail must be granted unless the police and the Court are convinced, after considering the matters in section 32 (see previous topic), that bail should be refused.
For such offences, it is said that there is a presumption in favour of bail.
Before reading on, check your police ‘fact sheets’ to see which particular offences relate to your case.
There is a right to bail for all offences under the Summary Offences Act 1988 and all offences that are not punishable by a prison sentence, except those involving the failure to pay fines (s8(1)).
There is a presumption against bail for certain drug-related offences under the Drug Misuse and Trafficking Act 1985 (sections 23(2), 24(2), 25(2), 26, 27 and 28) and the Customs Act 1901 (Cth) (sections 231(1), 233A and 233B).
There is a neutral presumption in respect of:
- Crimes Act sections 18, 26, 27, 28, 29, 30, 31, 33, 61J, 61JA, 61K, 66A, 66B, 78H, 85A, 90A, 95, 96, 97 and 98;
- Drug Misuse and Trafficking Act sections 23(1), 24(1), 25(1) and 25A but only if the offence involves at least twice the indictable quantity of drugs; see Bail Act s9(1)(d) & (d1);
- Firearms Act 1996 s7;
- offences involving domestic violence and/or breaches of apprehended violence orders eg Crimes Act; and
- failing to appear in Court; Bail Act s51.
There is a presumption in favour of bail for all other offences.
However, amendments to the Bail Act remove that presumption for persons judged to be ‘repeat offenders’, including persons who are:
- already on bail, parole and/or a ‘good behaviour bond’ ; and/or;
- still under periodic detention or a community service order.
In such cases, there is a neutral presumption (s9B).
Sydney Criminal Lawyers has an outstanding track record in obtaining bail for our clients, including in extremely serious cases such as murder, commercial drug importation, mulitple armed robbery, aggravated sexual assault etc.
Our bail lawyers can:
- advise you of your rights;
- explain the charges against you;
- explain your alternatives;
- represent you at you bail hearing;
- seek to have bail conditions varied (if you cannot meet them); and
- represent you for the criminal or traffic matter for which you are seeking bail.