Bail

What is Bail?

If you or a loved one is arrested and charged with a criminal offence, a decision must be made about whether or not they are to be at liberty during the course of the proceedings. Usually, a grant of Bail will be subject to conditions which are decision to mitigate certain risks which are acknowledged by the Bail Act 2013 (NSW).

How is Bail determined?

There are generally two bail tests which might apply to your matter:

1. The unacceptable risk test, and

2. The show cause test.

All persons who apply for bail are subject to the unacceptable risk test. However, not every person is subject to the show cause bail test as the test only applies to certain offences and circumstances. 

The unacceptable risk test

Pursuant to Section 17 of the Bail Act 2013 (NSW). The unacceptable risk test requires consideration of the following factors before granting a person bail:

1. Whether the person will fail to appear at Court or leave the jurisdiction 

2. Whether there is a risk that the person will commit a serious offence if they are free;

3. Whether the person will endanger the safety of victims, individuals or the community;

4. Whether the person will interfere with witnesses or evidence.

Generally, a case will always feature  one or more of the above risks as they can be seen as an inherent association with being charged of a criminal offence. This is recognised on the idea that risk on its own does not justify denying an accused person bail. The risk must an “unacceptable” one.

Often, the implementation of certain conditions can mitigate the “unacceptable risk”. For example, if there is an unacceptable risk that the accused person will attempt to flee the jurisdiction, either because they are of means or have dual citizenship, a condition can be imposed that the accused surrender their passport(s) to the Police and are not allowed to be in distance of a port of international departure. 

In most circumstances, an understanding of these risks and the conditions which could be put in place to mitigate them could be the difference in persuading a Court to grant Bail. 

What are common Bail conditions?

It is an important factor that the proposed Bail conditions are intended to mitigate risk and should not be designed to “punish” the accused. The conditions imposed should be tailored to the circumstances of the alleged offending, the  circumstances of the accused and the identified risks.

Common bail conditions might be:

• A condition requiring the person to reside at a specific address;

• A curfew condition preventing the person from leaving their home between specified times (this can be a matter of hours at night or virtual house arrest);

• A condition requiring the person to report to police on a specified number of days;

• A condition prohibiting the person from attending certain locations, including entire suburbs;

• A condition prohibiting the person from communicating with certain persons;

• A condition forbidding the person from entering international departure points;

• A condition requiring the person to hand in his or her passport;

• A condition requiring someone to deposit money as a means of security;

• An alcohol and drug abstinence condition;

• A condition requiring the use of a single mobile phone;

What if a breach my Bail conditions?

The Show Cause Bail Test

The show cause bail test is a test which applies in certain circumstances and msut be satisfied before the Court can hear submissions on “unacceptable risk”. If an accused fails to satisfy the “show cause” test, Bail will be denied. 

The show cause test is generally considered to be a difficult test to satisfy. It requires the accused to demonstrate why their detention is not justified. 

The Show Cause test applies to adults in the following circumstances:

1. The accused is charged with an offence that has a maximum penalty of life  imprisonment. Examples are murder or terrorism; or

2. A serious indictable offence such as sexual assault of a person under the age of 16.

3. A serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm if the accused person has previously been convicted of a serious personal violence offence;

4. Any of the following offences:

   1. A serious indictable offence under Part 3 or 3A of the Crimes Act 1900 (NSW) or under the Firearms Act 1996 (NSW) that involves the use of a firearm;

   2. An indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place;

   3. A serious indictable offence under the Firearms Act 1996 (NSW) that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm.

5. Any of the following offences:

   1. A serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 (NSW) that involves the use of a military-style weapon;

   2. An indictable offence that involves the unlawful possession of a military-style weapon;

   3. A serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon;

6. An offence under the Drug Misuse and Trafficking Act 1985 (NSW) that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act;

7. An offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code;

8. A serious indictable offence that is committed by an accused person:

   1. while on bail, or

   2. while on parole;

9. An indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order;

10. A serious indictable offence of attempting to commit an offence mentioned elsewhere in this section;

11. A serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section,

12. A serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under:

    1. This Act, or

    2. Part 7 of the Crimes (Administration of Sentences) Act 1999, or

    3. The Criminal Procedure Act 1986 , or

    4. The Crimes (Sentencing Procedure) Act 1999.

How is Show Cause Satisfied?

Unfortunately, the Bail Act 2013 (NSW) does not provide a definition of show cause. Lawyers often rely on case law and/or the existence of certain circumstances to show that the detention of the accused is not justified.  

Common arguments to show cause may include:

1. The accused is the sole parent of a young child or children
2. The accused has medical conditions which cannot be treated in custody
3. The accused requires drug/alcohol rehabilitation at a residential facility
4. The accused is able to deposit a significant sum of money as security
5. The accused has never been in custody before
6. The accused is unlikely, if convicted, to be sentenced to a term of imprisonment
7. The Prosecution case taken at its highest, appears to be weak or has significant deficiencies.

What happens if Bail is refused?

Can I make a further application for Bail?

Generally, you only get one chance to apply for Bail in the Local Court. This is because section 74 of the Bail Act 2013 (NSW) states that a further application is not permitted unless there are grounds to make another application. Usually, these grounds are:

• The accused was not legally represented when the previous application was dealt with and now has legal representation, or

• Material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

• Circumstances relevant to the grant of bail have changed since the previous application was made, or

• The person is a child and the previous application was made on a first appearance for the offence.

If any of the above mentioned grounds cannot be satisfied in the Local Court, you are entitled to make a further application for Bail in the Supreme Court.

Secure Your Freedom: Expert Bail Application Services by Barsha Defence Lawyers

At Barsha Defence Lawyers, we have a proven track record of success in handling bail applications and advocating for the rights of our clients. If you or someone you know is facing criminal charges and needs assistance with a bail application, don’t hesitate to contact us. Our experienced criminal defence lawyers are here to provide the guidance and support you need during this challenging time. Schedule a free consultation today to discuss your options and protect your rights.