Bail is where a defendant is released from custody pending the outcome of their court proceedings.
Applying for bail is an extremely important task because criminal prosecutions can often take several months or even years to finalise – time during which a person should not be allowed to languish behind bars.
It is therefore vital to engage criminal defence lawyers who are vastly experienced in representing clients for bail hearings, and have a proven track record of success in even the most complex and difficult situations – including when the charges are very serious and the prosecution evidence appears (on its face) to be strong.
The specialist defence lawyers at Sydney Criminal Lawyers® has an unparalleled track record in achieving bail in situations where other law firms are unable to do so (see our recent cases); from alleged $300 million commercial drug cases, to extremely serious allegations of sexual assault, to homicide matters and other cases where we are required to ‘show cause‘ as to why bail should be granted.
Our lawyers regularly appear in bail applications throughout NSW – from the Local Courts including Parramatta Bails Court on the weekend, through to the Supreme Court of NSW and – where Supreme Court bail is refused – the three judge bench of the NSW Court of Criminal Appeal.
For your peace of mind, we offer fixed fee packages for bail applications in all courts throughout the state.
So call us today on (02) 9261 8881 to engage the legal team that will give your loved-one the best chance of being released back to you, and see why we are Australia’s Most Awarded Criminal Law Firm.
Click on the links below for more information about bail in NSW:
How do I get Bail?
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 or application for bail.
What factors determine whether or not I get bail?
When determining a bail application the Court will ordinarily be given a copy of the Police Fact Sheet (which provides details of the charges that have been laid by Police) as well as a copy of your criminal history if you have one.
The Court will operate on the basis that you are presumed innocent, however, this does not mean that the Court will ignore the allegations that have been made by police or your criminal history. If the allegations are very serious or if you have an extensive criminal history you are less likely to be granted bail unless you are able to present a very strong bail application.
When determining your bail application, the Court must assess any “bail concerns”. A bail concern is a concern that, if released from custody, you will:
- Fail to appear at any future Court proceedings, or
- Commit a serious offence, or
- Endanger the safety of victims, individuals or the community, or
- Interfere with witnesses or evidence
In assessing the above “bail concerns” the Court must take the following factors into account (to the extent they are relevant in your case):
- Your background, including criminal history, circumstances and community ties,
- the nature and seriousness of the offence,
- 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 a history of compliance or non-compliance with court orders, such as previous bail conditions, apprehended violence orders, parole orders or good behaviour bonds,
- any warnings issued you regarding non-compliance with conditions,
- whether you have any criminal associations,
- the length of time you are likely to spend in custody if bail is refused,
- the likelihood of a custodial sentence being imposed if you are convicted of the offence alleged,
- if you have been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,
- if you have been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
- any special vulnerability or needs you may have including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
- your need to be free to prepare for his or her appearance in court or to obtain legal advice,
- your need to be free for any other lawful reason,
- your conduct towards any victim of the offence, or any family member of a victim, after the offence,
- in the case of a serious offence, the views of any victim of the offence or any family member of a victim, to the extent relevant to a concern that you could, if released from custody, endanger the safety of victims, individuals or the community,
- the bail conditions that could reasonably be imposed to address any bail concerns
- whether you have any associations with a terrorist organisation
- whether you have made statements or carried out activities advocating support for terrorist acts or violent extremism,
- whether you have any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.
After assessing the “bail concerns” if the Court is satisfied that there is an “unacceptable risk” the Court must refuse bail. In other words if any of the “bail concerns” operate to an unacceptable level, then the Court has no discretion to grant you bail and you will be bail refused.
"Show cause" offences
The Bail Act requires an applicant charged with certain offences to ‘show cause’ as to why their detention is ‘not justified’. A failure to show cause results in an automatic refusal of bail. In cases where the show cause provisions do not apply, the focus of a bail application is simply whether there are any ‘bail concerns’. Essentially, the show cause requirement creates an additional hurdle to overcome before bail can be granted. The show cause requirement generally applies where very serious allegations have been made.
The Bail Act provides a complete list of all offences to which the show cause provisions apply, which include all offences punishable by life imprisonment, certain indictable offences involving use of a firearm of military weapon, some serious sexual offences, certain drug supply offences, as well as numerous others.
Importantly, the Bail Act does not provide any guidance or define what amounts to cause being shown.
Absent any explanation from the legislature, the New South Wales Supreme Court, as part of its function in interpreting legislative provisions, has been left to interpret and provide guidance to the lower courts as to what exactly show cause means.
The Supreme Court has determined that a wide range of factors can overcome the show cause requirement of the Bail Act, including factors such as youth, first time in custody, a weak prosecution case, and serious health issues which cannot be treated in custody. Whilst the range of factors that might overcome the show cause provisions are not defined in the Bail Act itself, nearly all of the key Supreme Court bail decisions can be distilled down into two basic and very important principles:
- The show cause requirement does not mean there must be something special or exceptional about the case before bail can be granted; and
- A combination of factors taken together can amount to cause being shown.
What conditions can be placed upon my bail?
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
Who is an acceptable person?
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.
What if I don’t comply with my bail conditions?
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’.
What if I can’t comply with my bail conditions?
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.
What if I’m refused bail?
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.
Supreme Court Bail Applications
If you are refused bail in the Local or District Court, our experienced bail lawyers can apply to the Supreme Court for bail.
Again, you will normally 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 specialist 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.
How do I get my bail money/property back?
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.
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