If you are arrested on suspicion of committing a crime in NSW and you are charged, police will decide whether or not to grant you bail. Under current legislation, certain offences have a presumption in favour of bail, while others have a presumption against bail. If you have been accused of a committing an offence with a presumption against bail, police may refuse to grant you bail, and you will be required to appear at court to request bail.
If police have refused bail, legal advice is highly recommended. At court you will be required to present a convincing argument to the judge or magistrate to explain why you should be granted bail, and an experienced criminal lawyer can help you present your strongest defence and increase the chance that you will be successful.
Why would I be refused bail?
Currently you can be refused bail if you have been charged with an offence which has a presumption against bail, although recent changes to legislation will take effect next year to remove bail presumptions altogether. This means that other factors will be considered when deciding whether or not to grant bail. These include:
- The perceived risk to the community. If the magistrate or judge considers you likely to commit an offence or harm someone while you are released on bail, it is likely that you will be refused. If you have been charged with a violent or sexual offence it is more likely that you will be perceived as a risk to the community.
- Whether you are likely to appear at your hearing. A history of not turning up to court appearances and breaching the conditions of bail could lead to having your application for bail turned down.
- If you are considered to be likely to interfere with witnesses or evidence while you are released on bail.
There are a number of other things that police or the magistrate will take into consideration when deciding whether or not to grant bail, including your personal circumstances, who you live with, and what your likely penalty would be if you are found guilty of the offence in court.
Can I appeal if I have been refused bail?
If police have refused to grant you bail, you will be allowed to present your case in front of a magistrate or judge at the earliest possible opportunity. If the judge reviews your application and refuses to grant you bail, you can in some cases appeal to the supreme court.
Recent legislation changes mean that you can only appeal against a refusal of bail if you didn’t have legal representation the first time you applied, or if new evidence has come to light that is significant to your application. As the appeal laws surrounding bail cases are so stringent, it is generally best to make sure you seek legal advice the first time you apply for bail, as there is no guarantee that you will be granted an appeal.
If you have already been refused bail, you should definitely seek legal advice, particularly if you weren’t represented in your first application. Your lawyer can guide you through the bail process and help you present the strongest possible case so you can increase your chances of getting a good outcome.