If you have been charged with a criminal offence and you are facing a court case, you may be given the option of being released on bail until the matter is finalised.
This means that you will not have to serve out the time before your case is heard in prison, but you can be released, sometimes with certain conditions.
One of those conditions may be the provision of a certain sum of money or property as security that you will appear before court when the time comes for your case to be heard.
This money is returnable as long as you abide by all other conditions of your bail, and turn up at court on the nominated date.
The amount you will have to pay for bail varies, depending on a number of different factors.
There is no set amount for bail charges, the amount or value of the property is generally based on a few considerations, including:
- The severity of the offence. The more serious the nature of the offence the
- higher the amount of bail will probably be.
- Your financial circumstances.
- The likelihood of you not abiding by the terms and conditions of bail.
- The likelihood of you turning up for court when you are due to.
It is a good idea to speak to a criminal defence lawyer regarding how much your bail costs are likely to be.
A lawyer can give you an estimate based on the particular details of your case, and your personal circumstances.
Will I get all my bail money back?
Provided you (or the accused if you are putting up bail for a friend or family member) adhere to the conditions of bail, and turn up to court when you are supposed to, you will be entitled to receive all your bail money back once the matter has been finalised.
In order to do, this you will need to go to the court that finalised the matter and obtain a Notice of Outcome confirming that your matter is over. You can then take that Notice to the court where bail was lodged. Sometimes, the helpful court staff will fax the Notice to the ‘bail court’ for you and ensure that bail is returned promptly.
Any money you paid will be refunded as a cheque.
The process for claiming back property or title deeds is a little more involved, and your defence lawyer can advise you on this.
Will I automatically get bail?
Whether or not you will get bail depends largely on the individual circumstances of your case.
For many offences, there is an automatic ‘presumption of bail’ which means that you will automatically be granted bail.
For some more serious offences, there is a ‘neutral presumption’ which means that there is no presumption in favour or against bail. In these cases, bail will only be granted if you criminal lawyer convinces the court that it is appropriate to do so.
For some very serious offences, such as murder, or serious drugs offences, there is an automatic presumption against bail, which generally means you won’t get bail except in certain circumstances.
Relevant tests include the show cause test, the unacceptable risk test and various criteria associated with assessing risk.
What matters are generally considered in determining bail?
Section 18 of the Bail Act makes clear that all courts must consider the following matters, where relevant, during when considering the risk if the above bail concerns:
- The applicant’s background, including criminal history, and community ties,
- The nature and seriousness of the alleged offence/s,
- The strength of the prosecution case,
- Whether the applicant has a history of violence,
- Whether the applicant has previously committed a serious offence while on bail,
- Whether the applicant has previously complied with orders such as bail conditions, parole conditions, apprehended violence orders, good behaviour bonds, community service orders, conditional release orders and supervision orders,
- Any warnings by police or other bail authorities that the applicant has failed or was about to fail to comply with a matter that is relevant to a bail concern,
- Whether the applicant has criminal associations,
- The length of time the applicant is likely to spend in custody if bail is refused,
- The likelihood of a custodial sentence if the applicant is convicted,
- Where the applicant has been convicted and the matter has been set down for sentencing proceedings, the likelihood of a custodial sentence being imposed,
- Where the applicant has been convicted and sentenced, and an appeal has been filed, whether that appeal has a reasonably arguable prospect of success,
- Any special vulnerability or needs of the applicant including due to his or her youth, being a First Nations person, or having a cognitive or mental health impairment,
- The applicant’s need to be free to prepare for his or her appearance in court or to obtain legal advice,
- The applicant’s need to be free for any other lawful reason,
- The applicant’s conduct towards the victim/s, or any family member/s or the victim/s, after the alleged offence/s,
- In the case of a serious offence, the views of any victim/s, or any family member/s of the victim/s, to the extent this is relevant to a concern that the applicant may endanger the safety of a victim/s, individuals or the community,
- The bail conditions that are available to address any bail concerns,
- Whether the applicant has associations with a terrorist organisation/s,
- Whether the applicant has made statements or carried out activities advocating support for terrorist acts or violent extremism,
- Whether the applicant has associations or affiliation with any person/s or group/s advocating support for terrorist acts or violent extremism,
- Whether the alleged offence is considered to be a serious offence due to, among any other relevant things, its sexual or violent nature, or the fact it involves an offence weapon or instrument, or has a likely effect on any victim/s and the general community, or the alleged offences are numerous.
What is the ‘show cause test’ and when does it apply?
The first matter to determine is whether the circumstances require the application of the ‘show cause test’.
In that regard, section 16A of the Bail Act provides that a court must refuse bail to an adult applicant unless he or she shows cause as to why detention is not justified.
Section 16B of the Bail Act sets out the alleged offences as well as the circumstances that trigger the requirement to show cause.
It provides that the show cause test is activated where there is:
- An offence punishable by life in prison,
- A serious indictable offence (which is an offence punishable by at least 5 years in prison that involves sexual intercourse or the infliction of actual bodily harm with intent to have sexual intercourse by an adult against a person under the age of 16 years,
- A serious personal violence offence (being a NSW offence against a person under Part 3 of the Crimes Act 1900 punishable by at least 14 years in prison or a similar offence of the Commonwealth or another state or territory) or an offence involving wounding or grievous bodily harm where the applicant was previously convicted of a serious personal violence offence,
- A serious indictable offence under Part 3 or 3A of the Crimes Act 1900, or in the Firearms Act 1996 which involved the use of a firearm,
- An indictable offence (which is an offence capable of being committed to a higher court involving the unlawful possession of a pistol or prohibited firearm in a public place,
- A serious indictable offence under the Firearms Act 1996 which involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm, or firearm part that relates solely to a prohibited firearm,
- A serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon,
- An indictable offence that involves the unlawful possession of a military-style weapon,
- A serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon,
- An offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act,
- An offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code,
- A serious indictable offence alleged to have been committed while the applicant was the subject of an arrest warrant,
- An indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order, or
- serious indictable offence that was allegedly committed by the applicant while on bail or parole.
The section also encompasses attempts to commit any of the described offences, or assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit any of the offences.
A number of recent cases have made clear that the show cause test does not require the applicant to demonstrate something special or exceptional about his or her situation, and that factors which would not individually amount to showing cause can, taken together, result in the requirement being overcome.
What is the ‘unacceptable risk test’ and when does it apply?
In the event the show cause test is overcome or does not apply, the next step is to apply the ‘unacceptable risk test’.
This test is contained in section 17 of the Bail Act which provides that before deciding whether or not to grant bail, a court must assess whether, if released from custody, the applicant will:
- Fail to appear in court,
- Commit a serious offence,
- Endanger the safety of complainants, individuals or the community, or
- Interfere with witnesses or evidence.
The test stipulates that where bail conditions can overcome the risk of these situations occurring, the applicant is to be granted bail.
Conversely, if bail conditions are unable to overcome the risk and the risk is therefore unacceptable, the applicant is to be refused bail.
If your friend or loved-one has been remanded in custody and requires representation from an exceptional team of experienced bail lawyers, call Sydney Criminal Lawyers now on (02) 9261 8881 to arrange a conference with a defence team that is regularly able to achieve bail in extremely serious and complex criminal cases, including cases where other law firms will be reluctant to make the application, or will need to engage specialist bail lawyers, or will simply will not have the specialist knowledge and relevant experience to thoroughly prepare and persuasively present the application independently in court.
Our bail lawyers represent clients for bail applications in the Supreme Court and, for your financial peace of mind, our firm undertakes all bail applications on a fixed fee basis.