I’ve Been Accused of a Criminal Offence: Will I Get Bail?

If you’ve been arrested and charged with a criminal offence at a police station, one of your immediate concerns may be whether you’ll be released from custody until your scheduled court date.

Those who are charged by way of a court attendance notice will either be:

• Released from custody without bail, 
• Released from custody on bail, or 
• Remanded in custody’; which means kept in custody while their cases go through the course of criminal proceedings – something which can take many months, or in some cases even years.

What is bail?

Bail is where a person is released from custody on a commitment to attend court at the scheduled time, date and place.

It allows a person to remain community whilst they await their upcoming court date, whether unconditionally or subject to bail conditions.

There are a number of rules which apply to bail determinations – whether these decisions are made by police at the station or requested in court thereafter through what’s now known as a ‘release application’ (formerly called a bail application).

Understanding the bail process and the rules that apply can help alleviate some of the stress and uncertainty experienced by those suspected or accused of a crime.

So, here’s a thumbnail sketch of the rules.

Who can grant bail?

The rules regarding bail are governed by the Bail Act 2013 (NSW) (‘the Act’)

The Act provides that bail may be determined, and either granted or refused, at the police station after being formally charged or in court at any time thereafter.

Police are required to grant bail at the station and release a person from custody if this is required under the law, or if it is otherwise warranted in the circumstances after the proper consideration of all relevant matters.

Right to release

Section 21 of the Act provides that certain minor offences have a “right to release” on bail.

These offences include:

• Those which attract a fine-only (eg no potential term of imprisonment),
• Those under the Summary Offences Act 1988 (NSW), other than offences which have been specifically excluded, and
• Those being dealt with by conference under Part 5 of the Young Offenders Act 1997 (NSW).

Excluded offences under the Summary Offence Act 1988 (NSW) include obscene exposure, violent disorder, those knives and offensive instruments, or the use of laser pointers in a public place, as well as child sexual offenders being near children. 

Police bail determination

If the charged offence is not one which attracts a right to release on bail, a senior officer at the police station will determine whether to release the defendant from custody – whether or not subject to conditions.

When making that decision, the officer is required to apply tests such as the unacceptable risk test for bail outlined below.

The defendant will need to sign a bail undertaking before being released from custody.

Release application in court

If police refuse bail at the station, they are required to take a defendant before a magistrate as soon as practicable – whether that day or the next morning.

If the arrest takes place in the Sydney metropolitan area on a Friday afternoon, a Saturday or on a Sunday morning, the defendant will be taken to Parramatta Bails Court where the release application (bail application) can be made.

If an application is made at that time and is successful, the defendant will then be released from custody.

If an application is not made or is unsuccessful, he or she will be remanded in custody.

What is bail is refused?

It is important to be aware that even if an application is made and is unsuccessful, this is not necessarily the end of the matter. 

Rather, a further application may be made in the Local Court if there are new circumstances arise which are relevant to the determination of bail (see below), and a bail refused person also has the right to make a bail application in the Supreme Court of New South Wales.

In the event bail is refused by the Supreme Court, a person may still be able to make a further bail application in the Court of Criminal Appeal, which the highest criminal law division of the Supreme Court.

Circumstances which allow a further application to be made 

A release application can generally only be made to the same court once, so it’s important to be strategic about when an application is made. 

However, section 74 of the Act allows for a fresh application in the same court if:

• the defendant was not legally represented when the previous application was dealt with and now has legal representation, 
• material information relevant to the grant of bail is to be presented that was not presented to the court in the previous application, 
• circumstances relevant to the grant of bail have changed since the previous application was made, and/or
• the person is a child and the previous application was made on a first appearance for the offence.

The unacceptable risk test

Section 17 of the Act outlines the “unacceptable risk” test which applies to most defendants who are applying for bail in New South Wales.

Under the test, a bail authority  (such as a court) must determine whether the defendant represents an unacceptable risk of any of the following before making a decision regarding whether bail should be granted:

• Failing to appear at any proceedings for the offence, 
• Committing a serious offence, 
• Endangering the safety of victims, individuals or the community, or
• Interfering with witnesses or evidence.

Matters relevant to determining unacceptable risk

Section 18 of the Act requires the following matters to be considered when determining whether there is an unacceptable risk:

• The defendant’s background including criminal history, circumstances and community ties,
• The nature and seriousness of the offence,
• The strength of the prosecution case,
• Whether the accused person has a history of violence, has previously committed a serious offence while on bail or has a history of compliance or non-compliance with previous court orders,
• Whether the accused person has any criminal associations,
• The length of time the accused person is likely to spend in custody if bail is refused,
• The likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
• Any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
• The need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice or for any other lawful reason,
• The conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence or, in the case of a serious offence, the views of any victim of the offence or any family member of a victim,
• The bail conditions that could reasonably be imposed to address any bail concerns,
• Whether the accused person has any associations with a terrorist organisation, or has made statements or carried out activities advocating support for terrorist acts or violent extremism, or has affiliations with any persons doing so, and
• If the accused person has been convicted of an offence, but has not yet been sentenced or has appealed their conviction, the likelihood of a custodial sentence. 

Overcoming acceptable risk test

A criminal defence lawyer with specialised experience in release applications will be able to put you in the strongest position to overcome the unacceptable risk test by putting before the court material to establish relevant matters, such as that:

• You are of prior good character as it relates to the application before the court,
• You have not previously failed to comply with bail,
• You have strong ties to the community, such as family ties, employment, residence and any other community involvement,  
• You are willing and able to undertake any programs to address underlying causes of the alleged offending,
• The prosecution case is not as strong as the police allegations make it out to be,
• There is likely to be a lengthy time period before your case is finalised,
• A surety (acceptable person) is able to promise or deposit a security for bail, whether than be a sum of money or an interest in property, sufficient to overcome any concerns of fleeing the jurisdiction.

As can be seen, and unlike jurisdictions such as the United States, security for bail (a sum of money or property) is just one of several matters taken into account when determining whether the risk posed by releasing a defendant is unacceptable.

The ‘show cause’ test

Section 16A of the Act states that a bail authority must refuse bail if the defendant is charged with what is known as a ‘show cause offence’, unless he or she establishes ‘on the balance of probabilities’ that the detention is not justified. 

Section 16B of the Act lists the offences and circumstances for which this show cause requirement applies, which includes certain serious indictable offences (a ‘serious indictable offence’ is one which carries a maximum penalty of at least 5 years in prison), personal violence offences and offences allegedly committed whilst on bail.

A specialised field

It is especially important for those charged in show cause circumstances to engage specialist bail lawyers who are up-to-date with the constantly developing case-law in the area, as a comprehensive knowledge of these precedents will often be the determining factor in whether or not a client achieves bail. 

Indeed, it is not advisable for a person charged in these circumstances to engage generalist or otherwise inexperienced criminal defence representation.

Bail conditions

As stated, bail can be granted unconditionally or with conditions.

Bail conditions in New South Wales can include:

• Residing at a specific address,
• Reporting to a particular police station at specific intervals (eg each Monday and Friday),
• Adhering to a curfew and not leaving home between certain times (eg from 10pm to 5am),
• Not attending certain locations,
• Not communicating with certain persons,
• Not entering airports or other points of international or interstate departure,
• Surrendering passport,
• Abstaining from alcohol or other drugs,
• Using only a single mobile phone, declared to authorities, and/or
• Depositing money as a security.

Among other things, section 20A of the Act makes clear that a bail condition can only be imposed if it is:

• Reasonably necessary and appropriate to address a bail concern, 
• Reasonable and proportionate to the offence, and
• No more onerous than necessary and is both reasonable practicable to comply with and there are reasonable grounds to believe that the condition will be complied with.

A failure to comply with a condition of bail can lead to bail being revoked and the defendant person being remanded in custody.

Need a lawyer for a bail application?

If your friend or loved-one is going to court for a bail application, or if you are concerned you may be arrested and refused bail at the police station, call Sydney Criminal Lawyers anytime for accurate advice and exceptional representation by criminal defence lawyers with vast specialist experience in all aspects of bail, and who regularly achieve bail in extremely serious and complex criminal cases.

Our lawyers represent clients throughout New South Wales, including in the Sydney Metropolitan Area, Wollongong, Newcastle and on the weekend in Parramatta Bails Court.

Fixed fees are available for bail applications across the state.