Is Being of ‘Good Behaviour’ an Implied Condition of Bail in NSW?

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Is Being of ‘Good Behaviour’ an Implied Condition of Bail in NSW?

Good behaviour bonds ordered by courts for those who plead guilty to, or are found guilty of, criminal offences in New South Wales will always require that the defendant be of “good behaviour”; in other words, not commit further crimes for the duration of the bond.

Indeed, if the subject of a good behaviour bond commits a further crime before the bond expires, he or she can be called back before the court to be re-sentenced for the original offence, and the existence of the bond will be an ‘aggravating factor’ of the further offence; making the subsequent offending more serious.

But what about bail?

Is the requirement to be of good behaviour is an implied condition of bail in New South Wales?

Before we answer that question, let’s take a look at the meaning of bail in the context of the main piece of legislation that regulates bail in New South Wales, the Bail Act 2013 (NSW).

What is bail?

The definition of bail is contained in section 7 of the Bail Act, which simply states: ‘Bail is authority to be at liberty for an offence’.

In this context, ‘at liberty’ means free from detention.

In practical terms, bail is a promise or undertaking by a person to attend a specified court at a particular time and date if released from custody.

Bail can be unconditional, meaning the only requirement is to attend court on the next occasion, or it can have conditions, which under sections 25 to 30A if the Bail Act can include:

  • Surrendering a passport,
  • Reporting to a particular police station at specified intervals,
  • Not approaching or contacting certain persons,
  • Having an acceptable person (sometimes called a ‘surety’) deposit money or something else of value (known as a ‘security’),
  • Not leave a residence between certain hours of the day (known as a curfew),
  • Electronic monitoring, and so on.

The process of determining whether bail will always involve what is known as the ‘unacceptable risk test’ – which assesses whether any risks of granting bail – namely the risk of failing to attend court, committing a serious offence, endangering others and interfering with witnesses or evidence – can be overcome by conditions.

However, certain cases will require a preliminary test to be undertaken before moving on to the unacceptable risk test.

These cases are called ‘show cause cases’ and the preliminary test is known as the ‘show cause test’, which says bail must be refused for certain offences, “unless the accused person shows cause why his or her detention is not justified.”

So that’s a short rundown of the meaning of bail and the tests that apply when deciding whether a person is to be released from custody pursuant to a bail undertaking.

But does that undertaking impliedly require the person to be of ‘good behaviour’ by not committing a criminal offence while at liberty?

Or to put it another way, is committing an offence necessarily considered to be a breach of bail?

Bail conditions must be expressly stated

The case-law which interprets the Bail Act makes clear that the presumption of innocence requires any law which curtails a person’s liberty to be clear and unambiguous.

It follows that without an express order to be of good behaviour, there is no legal requirement to do so; in other words, committing an offence whilst on bail would not, in and of itself, amount to the act of contravening bail.

In that regard, it is important to note that breaching bail is not discrete offence, but can support a ‘detention application’, which is an application made by the prosecution for bail to be refused.

The exception to this rule is the offence of failing to appear in court without a reasonable excuse, which is a discrete offence under section 79 of the Bail Act which carries a maximum penalty of three years in prison.

To be enforceable, an order to be of good behaviour would need to be made under section 25 of the Bail Act, which states in part:

(1) Bail conditions can impose conduct requirements on an accused person.

(2) A “conduct requirement” is a requirement that the accused person do or refrain from doing anything.”

If the order is not expressly stated, it cannot be implied.

Need a criminal lawyer for a bail application?

If you or a loved-one are facing a criminal charge and are concerned about whether you are likely to be eligible for bail, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to speak with an experienced bail lawyer with a proven track record of achieving bail in the most difficult of circumstances and let us help protect your liberty, so you can focus on your family, your career and your future.

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Fahim Khan

Fahim Khan is a highly-respected lawyer with many years of criminal defence experience.

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