Bail applications may be made to the Local Court, District Court or Supreme Court of NSW.
If you are refused bail, you will remain in custody at a correction centre on remand at least until your case is finalised. However, you can appeal a decision to refuse you bail made either by a Local Court Magistrate or District Court judge to the NSW Supreme Court.
What happens at a bail application?
The Judge or Magistrate will want to hear evidence, either orally or by way of affidavit, from people who will support your bail application. These could include people you might live with or people who will put up money or property to secure your bail.
If you want to do residential rehabilitation while you are on bail, the main way you can be assessed for rehabilitation if you are in custody is by way of a request from a court. Then when your bail application is heard, there will be a letter before the Court from the centre, saying they have accepted you, and detailing the program. It helps if you have someone who can pick you up from gaol and take you directly to the centre.
If you are granted bail, the bail is usually conditional. Common conditions usually include:
- That you are to reside at a certain address.
- That you observe requirements as to your conduct while on bail. This may include a curfew, reporting to police, restrictions on you associating with specified persons or visiting specified places.
- That one or more acceptable person(s) acknowledge that they are acquainted with you and regard you as responsible and likely to comply with the bail undertaking.
- That you and/or one or more acceptable person(s) will forfeit an amount of money if you fail to comply with your bail undertaking.
- That you surrender any passport held by you.
What factors will a judge or Magistrate consider at a bail application?
The Bail Act determines whether an offence had a presumption for, against or neutral in regard to bail. It also lists the factors a court is allowed to take into account in determining whether bail should be granted. Some of these are:
- The probability of whether or not the person will appear in court in respect of the offence for which bail is being considered,
- The person’s background and community ties,
- Any previous failure to appear in court,
- The circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty,
- The period that the person may be obliged to spend in custody if bail is refused.
A new Bail Act was passed by Parliament in 2013, which is yet to come into effect. It has been speculated that the new Bail will come into effect in May 2014 at which time the Court will be required to consider whether you pose an unacceptable risk prior to granting bail.