Bail Applications Information & Process for Sydney NSW
The subject of bail is always tricky. There are many misconceptions about the process, conditions, outcome, and how much it costs in Australia. In this article, we will walk you through your rights in the whole process from start to finish, whether you want to post bail for someone or are trying to get granted bail.
What is bail & how does it work in Sydney Australia?
Getting bail refers to the release of someone who is held in custody pending a trial until the case is finalized. Normally there is only get one chance to get bail so it is important to present the best possible case as to why it is required.
How to get bail in Sydney?
Only the “bail authority” has the ability to grant your application. Authorities that have this power includes police officers, an authorized justice (such as a court registrar) and the court itself.
Police may decide to give you police bail after you have been charged. This means that you can be released back into the community until you are required to attend court. Alternatively, they may keep you in custody at the police station until they are required to bring you to attend court. Usually, this is the same day or following morning as you must be brought before the court in a time-frame which is “as soon as practicable”. You will have the opportunity of attending court and applying to be released back to the community. This is called a bail application.
Factors that are considered for getting bail
The court will be given a police fact sheet which provides details of the charges. They will be given a copy of your criminal history if applicable. The Court will operate on the notion that you are innocent until proven otherwise. It will take into consideration allegations that have been made by the police and your history in its determination. Where the allegations are very serious or an extensive criminal record is evident then the likelihood of being granted bail will not be as strong.
Determination by the courts:
The court must assess the following “bail concerns”. The concerns are related to the following:
- Failure to appear to future court proceedings
- The possibility of committing a serious offence
- Endangering the safety of others in the community or the alleged victim
- Interference with witnesses or evidence
Assessment of concerns
- Background, criminal history, circumstances and community ties
- Nature and seriousness of the offence
- The strength of the prosecution case
- History of violence
- Any previously serious offences committed while on bail
- History of non-compliance with court orders such as Apprehended Violence Orders (AVOs), Parole Orders and Good Behavior Bonds
- Warnings issued for non-compliance of conditions
- Involvement in any unlawful associations
- Length of time in custody if refused release
- Likelihood of custodial sentence if convicted of the alleged offence
- If you have any appeals pending a prior conviction
- Any vulnerabilities based on race i.e. Aboriginal or mental health
- Free to appear in court or to obtain legal advice
- Conduct towards victim and victims family members
- Whether specific bail conditions can be set to address any underlying concerns
- Any association with a terrorist organization
- Support or involvement in terrorist acts
If the courts are satisfied that the concerns can be mitigated with the bail conditions or that there is not an unacceptable level of risk for the court to refuse then they may grant bail. If the level of risk is deemed too high for any one of the above reasons the application may be refused by the court.
“Show cause” offences
Show cause refers to the applicant held in custody who needs to show cause as to why they should not be held in custody or detention and why it is not justified. If the applicant is unable to show cause they will automatically be refused release. In some, “show cause” provisions do not apply and the focus lies more towards the concerns. Showing cause is an additional hurdle to overcome and generally applies to very serious allegations.
Example of allegations where showing cause is required:
- All offences punishable by life imprisonment
- Certain indictable offences involving the use of firearms, serious sexual offences and some drug supply offences
Although sufficient cause is not explained specifically in the legislation the supreme court of NSW helps to interpret this provision as including; youth, the first time in custody, weak prosecution case, serious health issues which cannot be treated in custody. Overall it can be distilled down to 2 basic elements:
- It does not necessarily require a special reason of the exception
- A combination of factors will be taken into consideration to determine if the cause is sufficient
What conditions can be placed upon my bail application?
There does not always need to be conditions attached to your bail application. Although in some cases conditions may be imposed in order to mitigate an “unacceptable risk”. If conditions are imposed they must be reasonable and proportionate to offence and appropriate for the “unacceptable risk”.
Examples of some conditions:
- Refrain from doing something – i.e. attend drug or alcohol program to stop drug and alcohol consumption
- Agree to forfeit a specified amount of money (knows as surety). This specified amount of money is used in the event that you fail to appear in court during the specified date. An acceptable person can also pay (post) this on your behalf.
- Reside at a particular address i.e. home arrest
- Surrender your passport before being released
- Provide character references from acceptable persons which state that you are likely to comply with your conditions and be present at your court date
- Enforcement condition which requires you to report to police on regular basis similar to probation.
- Security – if the courts feel there is an unacceptable risk that the accused will not appear they can impose a security condition which means that an acceptable person (usually family) must deposit a certain amount of money if the accused does not appear in court.
Who is an acceptable person for paying (posting) my bail?
In the event that bail money is to be paid, someone who has known you for some time (at least a few months) is required to provide a character ref and forfeit money on your behalf as surety. If character reference is required they must state in reference how long they have known you, the nature of your relationship and why they believe you will comply with your conditions if released. An acceptable person form is required in order for them paying money on your behalf when bailing you out.
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What if I don’t comply with my bail application conditions?
It is always recommended that you comply with your conditions. If however do no you will be breaching and the police may do the following depending on the extent of your breach:
- Take no action
- Issue a warning
- Issue a notice requiring you to come back to court
- Issue court attendance notice to come back to court if they suspect you have committed a further offence
- Apply for a warrant for your arrest
- Arrest you and take you before a court
Police may take action if:
- Breach is serious
- There is a lack of reasonable excuse for the breach
- The absence of any personal attributes and circumstances cause your breach
- If an alternative course of action other than arresting you is appropriate in the circumstances
Reevaluating your conditions before the court:
The court may decide on the following if you are brought back before them:
- Release you again subject to the same conditions
- Vary existing bail conditions and add further conditions
- Take you back into custody
Generally, breach of bail is not an offence unless the breach was due to the failure to attend court hearings when required without a reasonable excuse. If this is the case you may also face heavy penalties. The maximum penalty is 3 years and you may also be fined $3,300. In addition, the magistrates court may order that the surety money is forfeited. If you disagree with this decision you will have 28 days to object once a court order has been issued.
Objecting to court’s decision:
You are able to object to the following and the court may decide to:
- Revoke their order
- Vary the order (i.e. reduce the amount being forfeited)
- Confirm the order
Compliance with bail application conditions
Your circumstances are subject to change and this may make it difficult to adhere to your bail conditions. Here is a brief summary of what you should do if you cannot comply with due to a particular occasion or you cannot comply at all.
Particular occasion preventing compliance:
- Being too sick to report to police or attend drug and alcohol program.
- You have suffered an accident which makes it difficult to get home by curfew
- You should contact the police station and report them on your change in circumstances or inform the program coordinator.
- You should also get a medical certificate for sickness or have a good excuse and be able to show that your illness was serious and unavoidable. Your reasons need to be enough so that it would be unreasonable for you to meet your bail conditions due to your sickness.
Can’t comply to the bail condition at all:
Moving house or starting a new job and working hours outside your curfew. In these circumstances, you should seek a “bail variation” and be brought back before the court to get it changed. The police should also be contacted to see if they will agree to the changes or oppose your release from custody altogether.
Bail application refused
Usually, there is only one shot at getting bail in local court unless there are further grounds for bail applications. There are four possible further grounds to consider when applying for bail again:
- You did not have an attorney at your previous application and now have one
- New relevant information that was not previously present is now available to the court
- Circumstances relevant to bail have changed since the first application i.e. a dependent is seriously ill and requires their care
- You or your loved one is a child and only have one previous bail application
If no further requirements, you will still be able to make an appeal at Supreme Court for the bail application to be heard again.
Supreme Court Bail Applications Process
There is only one chance to apply to the Supreme Court for bail unless you can show further grounds for bail app
How do I get my bail posting/property back?
If money was forfeited by you or another person and the conditions of your release were not breached you are entitled to get the money back. The money will be refunded as a cheque. To get the cheque you will need to do the following:
- Go to the registry of the court where the case was finalized, then obtain your “bail refund letter” and send or fax it to the Supreme Court bail matters counter
- Go to the supreme court with the original receipt for your money/property, bring 2 forms of id with signature
You may also get it back from the local court by attaching a copy of the bail refund letter and will need to wait 7-10 days.
For the acceptable person:
- Go to the court registry
- Obtain bail refund letter and send to Supreme Court
- Complete a “Withdrawal of Caveat” form available at legal stationery shops and Supreme Court bails matters counter
- Take all docs to the “land and property information” building to have the caveat removed
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