By Tayla Regan
It means you will be released from custody pending your next court date.
The Bail Act 2013 sets out the rules relating to bail in NSW.
Like its predecessor, it has been amended numerous times since its enactment in response to community concerns that those suspected of serious crimes were being released from custody too easily.
Among other things, those concerns led to the insertion of a ‘show cause’ test in respect of a whole host of offences.
If police refuse to grant bail, you will be brought before a court at the earliest practicable time for the magistrate to decide whether bail will be granted or refused.
Show Cause test
If you are charged with a ‘show cause’ offence, bail will be refused bail unless you are able to persuade the court that your detention is unjustified. This is reflected in section 16A of the Bail Act.
Show cause offences include those which carry a maximum penalty of life in prison, certain drug offences, firearms offences and many offences of a sexual nature. A list of show cause offences is contained in section 16B.
Although the Act does not explain the circumstances in which the show cause test may be overcome, recent case law has provided significant guidance regarding meeting the test and achieving bail in show cause cases.
Of course, you will not be required to satisfy the show cause test if your charge does not fall within the category of a show cause offence.
However, the original test in the Bail Act will need to be overcome, which is known as the ‘unacceptable risk’ test.
Unacceptable Risk Test
To be granted bail, the court will need to be satisfied there are no bail concerns that create an ‘unacceptable risk’.
A bail concern is the apprehension that if you are released from custody, you will:
- Fail to appear in court; or
- Commit a serious offence; or
- Endanger the safety of any victim, individual or the community; or
- Interfere with witnesses or evidence.
The court will consider a wide range of factors when deciding whether to grant bail, including your criminal history, the seriousness of the offence, the strength of the evidence, your links to the community, your reasons for remaining at liberty, the likely time it will take for your case to be finalised and so on.
It is your lawyer’s job to convince the court that any risks are not unacceptable.
What are bail conditions?
Bail conditions may be imposed to alleviate any bail concerns.
For example, if the court is concerned you may not attend court, it will often impose a condition that another person, called a ‘surety’, deposit a sum of money with the court, called ‘security’, and forfeit that sum if you fail to attend.
Other bail conditions may include:
- That you reside at a particular address;
- That you not approach within a certain distance of an international point of departure,
- That you surrender your passport;
- Conduct requirements – such as undertaking a rehabilitation program, or refraining from contacting certain persons or entering specified locations,
- Character acknowledgments – where acceptable persons attest to the fact they believe you will comply with bail, or
- Enforcement Conditions – such as reporting to a specific police station between certain hours daily, or on particular days of the week.
What happens if I breach my bail?
If you are suspected of breaching one of more of your bail conditions, one of the following may occur:
- Discretion may be exercised to take no action;
- A warning may be issued; or
- You may be brought back before the court for your bail to be re-determined.
A range of factors may considered when determining what action to take, including:
- The nature and seriousness of the breach,
- Whether there have been any previous breaches,
- Whether you have a reasonable excuse for the breach,
- Your personal circumstances; and
- Whether there are alternatives courses of action.
If your breach involves a failure to attend court, you may be charged under section 79 of the Act with failing to appear. The maximum penalty for that offence is equivalent to the maximum penalty for the offence in respect of which bail was granted, but cannot exceed 3 years’ imprisonment and/or a fine of $3,300.
What action can the court take in relation to my breach?
If you are brought before the court for a breach, the magistrate may:
- Release you on your existing bail conditions; or
- Vary your existing bail conditions; or
- Add extra conditions; or
- Refuse bail altogether.
If you are charged with failing to appear, the magistrate will deal with that alleged offence separately.
If a surety has deposited a security, the court may order that this money or asset be forfeited to the state.
What should I do if I can’t comply with my bail conditions?
If your situation has changed and you are unable to comply with your bail conditions, an experienced criminal defence lawyer will be able to advise you on the prospects of varying your bail. If your prospects are good, they can prepare and file the application for variation, liaise with the prosecution to obtain consent to the variation (which can increase the chances of success), guide you in obtaining any supporting materials (eg a letter from work which sets out your hours and commitments, or evidence of a change in address) and make submissions in court.
If you have already breached a condition, a lawyer who has specialist experience in bail cases will be able to liaise with police to increase the likelihood you are not sent back to court for the re-determination of your bail.
If you are going to court for failing to appear or a re-determination of bail, a good lawyer will be able to increase your prospects of remaining at liberty.