There are three types of Bail Applications under the Bail Act 2013:
- A release application (section 49);
- A detention application (section 50); and
- A variation application (section 51).
An application for release is an application for bail to be granted. Bail is the granting of temporary liberty to a person charged with a criminal offence. It may be granted by the police or by a court. In New South Wales, if the authorised police officer (being at least a Sergeant or the officer in charge of the Police Station at the time) refuses bail of a detained person, then he/she has a right to be brought before the court on the next available date to have a bail decision made by the court. Police are quite often reluctant to grant police bail for the more serious criminal offences or where you have an unfavorable criminal record.
In practice, unless a matter is listed for first mention, the courts will expect that that your matter be formally listed for the hearing of a release application. It is also expected that the Director of Public Prosecutions or the police prosecutor be put notice of any intended release or variation application. Often during this time, we will attempt to negotiate with the Police and/or DPP that specific bail conditions be consented to.
An application for detention is made by the police prosecutor or the DPP. Where a detention application is to be made, the Police or DPP with give notice to an accused person or if you are represented, notice will be given to your lawyer. Upon receiving notice, we will immediately commence preparation to give you the best possible chance of not being remanded into custody.
An application to vary bail seeks to vary existing bail conditions that have been ordered by the court. An interested person can apply to have bail conditions of an accused varied. The Bail Act 2013, unlike its predecessor (the Bail Act 1978), permits not only the accused or the prosecutor to make an application to vary bail, but also the complainant of a domestic violence offence.
Number of Bail Applications Allowed
It is a common misconception of many accused that they can have unlimited opportunities to apply for bail. Prior to 2007, you could apply for bail in the Local Court as many times as you wanted. This is no longer the case.
Section 74 of the Bail Act 2013 provides that a further release application (bail application) is not permitted unless there are grounds to make another application. Any bail application heard by the court is to be dealt with as a new hearing – section 75. The grounds for any further applications are set out in section 74 (3) and are as follows:
The accused was not legally represented when the previous application was dealt with and now he or she has legal representation; or
Material information which is relevant to the grant of bail is now available and was not presented during 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 of the offence.
It is for this reason that it is imperative to meticulously prepare for the initial Local Court bail application. It is crucial to have an experienced lawyer preparing and appearing at your bail application to ensure that you are given the best possible chance of success. There is often a significant delay for bail applications to be heard in the Supreme Court.
Reasons to be Recorded
Section 38 of the Bail Act requires the Magistrate hearing the bail application record the reasons for refusing bail or imposing bail conditions. These reasons are as follows:
If bail is refused, the Magistrate’s reason/s must be recorded. If there was an unacceptable risk or risks, then that unacceptable risk or risks must be identified- section 38 (1).
If imposing bail conditions, the Magistrate must record why unconditional bail was not granted and the bail concerns must be identified – section 38 (2).
If a security is imposed, the Magistrate must include the reasons for imposing security requirements- section 38 (3).
The Magistrate must record the reasons for imposing bail conditions that are different to those sought by the accused in the application- section 38 (4).
Unacceptable Risk and Show Cause
The Bail Amendment Bill 2014 introduced important changes to the bail regime in New South Wales through the insertion of the show cause provisions. Certain serious offences require an applicant to ‘show cause’ as to why his or her detention is not justified (section 16B of the Bail Act 2013). The onus of showing cause is on the applicant. Each case must be assessed according to its own facts and the individual circumstances of the applicant.
The Bail Act 2013 did not provide a list of considerations which the court should take into account when determining if an accused applicant has shown cause. However, since the introduction of the show cause provisions, courts have taken into account factors such as the alleged level of criminality, the ties of the accused to the community, criminal history, likely length before trial, likely penalty if convicted and strength of the prosecution case.
If an applicant shows cause, then the court must then consider the issue of whether or not there is an unacceptable risk taking into account any bail concerns and proposed bail conditions. If the court determines that there is an unacceptable risk, then bail must be refused.
It is imperative that you engage the services of an experienced lawyer to apply for bail to ensure that your release application is presented to the court succinctly and with all relevant information giving you the best chance of success.
If the Court grants bail, it can do so either conditionally or unconditionally. However, one mandatory condition is that the accused needs to appear at Court on the court listed dates (we can make an application for you to be excused if legally represented on some of the court listed dates). If there are any conditions placed upon the bail given to a person then the court must state the reasons why such conditions were imposed upon the person.
Conditions include, but are not limited to reporting to a police station on certain days(i.e. daily, weekly etc), the requirement not to communicate with specified persons (i.e. alleged victim or witnesses), the requirement to attend rehabilitation or seek treatment, to reside at a nominated address, a curfew, not to go within a certain distance of specified locations or to surrender a passport (to reduce flight risk).
A court may also in granting bail require someone to act as a surety to agree to lodge money or agree to forfeit a certain amount of money if you fail to attend court. The surety ordinarily posts a sum of money as security or alternatively evidence that he/she can provide a sum of money if required (e.g. title deeds to a property).
Bail conditions can only be imposed if a bail authority is satisfied that there are identified bail concerns.
Bail conditions may be imposed by the Court, but only if the court is satisfied of:
The condition is reasonably necessary to address a bail concern- section 20A(2)(a); and
The condition is reasonable and proportionate of the offence – section 20A(2)(b); and
The condition is appropriate to the bail concern identified- section 20A(2)(c); and
The condition is no more onerous than necessary to address the bail concern identified (section 20A(2)(d); and
It is reasonably practicable for the accused person to comply with the condition- section 20A(2)(e)
There are reasonable ground to believe that the condition is likely to be complied with by the accused person- section 20 (2) (f)
Please call our office on (02) 8251 0059 to discuss your bail application. If you require advice out of business hours, please call or text Ms Trimmer on 0416 145 242.