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Bail Application Lawyers Sydney

Bail applications can be one of the most frightening experiences for people accused of crimes and their families. Bail applications are high stakes because if unsuccessful, a person may stay in prison for weeks months or years, waiting for their case to finalise. This is a terrifying prospect for someone who has never been to jail and may not think they are tough enough to survive.

Even for people who have been in and out of prison before, the prospect of being refused bail is confronting. It rips them away from their children, wives, family, and friends. They only have a couple of hours visits at correctional centres and 6-minute phone calls.

The impact of being refused bail can be devastating.   This is why Australian Criminal Law Group are the criminal lawyers that you and your family need if you are refused bail.   

Australian Criminal Law Group are based in SydneyParramatta and Blacktown and represent clients from across the broader Sydney area. 

Below is information about the bail process. If you need further representation or bail advice, make a website enquiry here or call our free 24/7 bail hotline on (02) 8815 8167.

What is Bail?

Bail is where a person, charged with a criminal offence, is released from prison while their case is being determined in court.

Bail in New South Wales is mandated under the Bail Act 2013 No 26 which provides a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions.

Who can grant bail?

Bail can be granted by one of four main bail authorities.  These are listed in The Act as;

  1. A police officer: Bail is granted by the police after an arrest.  This is called ‘police bail’
  2. Local Court: Where bail is refused by the police, you will attend court to have your matter heard by a local court magistrate at the next possible date. This is ‘court bail’.
  3. Supreme Court: If you have your bail refused by the local or district courts, you can apply to have your matter heard at the Supreme Court.  This is a completely new bail application, and it is heard by a single judge of the Supreme Court 
  4. Court of Criminal Appeal: If bail is refused by the Supreme Court, an application for bail can be made to the Court of Criminal Appeal where three judges of the Supreme Court will hear the application to decide whether to grant bail.

Police Bail

When arrested and charged with an an offence, you will be taken to the police station for processing.  Afterwards, a senior police officer may grant you bail, authorising for your immediate release into the community until your court date.  This is ‘Police Bail’

If this is the case, it means that you can go about your normal life in the community until your case is heard and finalised in court.

Depending on the severity of the offence you may need to comply with certain conditions to meet the terms of your bail.   This can include requirements for residing at a specific address, abiding by a curfew and to report to the nearest police station.

To grant bail, the police officer must have the rank of sergeant or higher. 

If refused police bail, it is required you be taken you to appear before the nearest court as soon as possible, where you can make a bail application at that time.   This normally happens the same or next day. 

Local Court Bail Applications

If the police refuse bail, you will be taken to court to make a bail application at that time.  This is called ‘Court Bail’.

If you are refused bail at the Local Court or District Court, you can appeal the decision to the NSW Supreme Court. In some circumstances you make a second application to the Local Court, District Court, or Supreme Court.

Supreme Court Bail Applications

If you are refused bail in the Local Court or District Court, you can appeal to the Supreme Court to grant you bail.   This is a completely new bail application that is made.  An application for bail can only be made after a local court application for bail is refused.  

At the Supreme Court a single judge hears evidence from people who support your bail application. These could include family, employers, and treatment providers.

There is a lengthy wait for Supreme Court bail applications of up to 8 weeks, and so they should be lodged immediately after a person is refused bail in the Local Court or District Court.

How to get bail granted?

There are two main types of bail application.  The first is the unacceptable risk test.  The second is the show cause and unacceptable risk test.

Which of the two tests applies to bail is determined by the charge itself or factors subjective to you, such as whether you are on bail or parole for another offence.

Show Cause Requirement for Bail Applications

If charged with one of the more serious offences such as murder and child sexual offences, or already on bail or parole when charged with certain offences, you will have to ‘show cause’ for why they should be granted bail.

This means that the onus is on the applicant to ‘show cause’ as to why their detention is not justified.   If they can’t ‘show cause’ as to why they should not be held in custody, they will be refused bail.

There are no specific requirements outlined in The Act for what is required to ‘show cause’, rather every application is reviewed and decided on a case by case basis.   Common ways that cause is shown is a weak prosecution case, being young and in custody for the first time, medical reasons, mental health conditions or a need for drug and alcohol rehabilitation.

Generally, if there is a Show Cause Requirement for bail, it means that bail will be more difficult to have granted. 

What offences have a ‘show cause’ requirement for bail?

The Act includes a long list of types of offences that are required to ‘show cause’.  Each of the following offences is a “show cause offence””

(a) an offence that is punishable by imprisonment for life,

(b) a serious indictable offence that involves–

(i) sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or

(ii) the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years,

(c) 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,

(d) any of the following offences

(i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a firearm,

(ii) an indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place,

(iii) a serious indictable offence under the Firearms Act 1996 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,

(e) any of the following offences

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

(ii) an indictable offence that involves the unlawful possession of a military-style weapon,

(iii) 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,

(f) an offence under the Drug Misuse and Trafficking Act 1985 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,

(g) 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,

(h) a serious indictable offence that is committed by an accused person

(i) while on bail (whether granted under this Act or a law of another jurisdiction), or

(ii) while on parole (whether granted under a law of this State or another jurisdiction),

(i) 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,

(j) a serious indictable offence of attempting to commit an offence mentioned elsewhere in this section,

(k) 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,

(l) 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–

(i) this Act, or

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

(iii) the Criminal Procedure Act 1986 , or

(iv) the Crimes (Sentencing Procedure) Act 1999 .

Unaceptable Risk Test for granting bail decisions

In less serious cases the court will apply the “unacceptable risk test” to determine if bail should be granted.  For this, the court will consider the following bail concerns:

  • Whether a person will fail to appear at any proceedings for an offence
  • Whether a person will commit a serious offence
  • Whether a person will endanger the safety of victims, individuals or the community, or
  • Whether a person will interfere with witnesses or evidence

In assessing the above bail concerns, a bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division–

(a) the accused person’s background, including criminal history, circumstances and community ties,

(b) the nature and seriousness of the offence,

(c) the strength of the prosecution case,

(d) whether the accused person has a history of violence,

(e) whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction),

(f) whether the accused person has a history of compliance or non-compliance with any of the following–

(i) bail acknowledgments,

(ii) bail conditions,

(iii) apprehended violence orders,

(iv) parole orders,

(v) home detention orders, good behaviour bonds or community service orders,

(vi) intensive correction orders,

(vii) community correction orders,

(viii) conditional release orders,

(ix) non-association and place restriction orders,

(x) supervision orders,

(f1) if the bail authority is making the assessment of bail concerns because the accused person has failed or was about to fail to comply with a bail acknowledgment or a bail condition, any warnings issued to the accused person by police officers or bail authorities regarding non-compliance with bail acknowledgments or bail conditions,

(g) whether the accused person has any criminal associations,

(h) the length of time the accused person is likely to spend in custody if bail is refused,

(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(i1) if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,

(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,

(k) 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,

(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,

(m) the need for the accused person to be free for any other lawful reason,

(n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,

(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,

(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A,

(q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code),

(r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism,

(s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

(2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered–

(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900 ,

(b) the likely effect of the offence on any victim and on the community generally,

(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.

Where the court determines that there is no ‘unacceptable risk’, the applicant will normally be granted bail unconditionally and be released from custody.   If the court determines that there is potential risk, they may still grant bail but impose conditions on the bail in order to try and mitigate that risk.   In most cases, bail is granted conditionally.

Bail Acknowledgement

The granting bail authority is to grant an accused person, as soon as is possible, a bail acknowledgment for the decision relating to their bail application.   This is a written notice that includes requirements for the accused including;

  • A requirement for the accused person to appear before a court at a specified data, time and place.
  • A requirement for the accused to notify the court of any change to their residential address prior to the court date
  • Warn the accused that committing an offence while on bail could result in a more severe penalty being imposed on conviction for that offence
  • Set out bail conditions should any apply
  • Explain consequences of failing to comply with the bail acknowledgement or bail conditions
  • Include information regarding the review or variation of the decision the regulations require to be provided when bail is granted.

What are Bail Conditions with examples?

Bail conditions are imposed to mitigate risk when bail is granted.   If you are granted bail it is usually conditional.

Common conditions may include but are not limited to the following examples:

  • Security by way of property or money guarantee deposited to ensure the applicant attend court.
  • Applicant to reside at one specific address.
  • Applicant to use a single mobile phone
  • Curfew imposed preventing the applicant from leaving their home between specified times.
  • Applicant is restricted from associating with specified persons
  • Applicant is restricted from visiting specified places, locations and entire suburbs.
  • Applicant requirement to report to police on specified days
  • Applicant forbidden from entering international departure points
  • Applicant to surrender their passport
  • Applicant to abstain from alcohol and drugs, including regular sobriety tests

How long does bail last?

Bail normally continues until all proceedings for the offence have concluded.   It can also cease for the following reasons which are listed in the Bail Act 2013. 

  • It is revoked
  • All proceedings for the offence have concluded but further substantive proceedings for the offence have commenced. A new bail decision for the offence can be made in this instance.
  • All proceedings for the offence have concluded and no further substantive proceedings for the offence have commenced.
  • If bail was granted for a specified period, it will cease at the end date of that period.

Can I apply for bail more than once?

Generally, a bail application should only be made to the same court once, unless specific criteria are met.  If refused by local court, a bail application can be furthered to the supreme court for review.  If refused by the Supreme Court, an application can be made to the Court of Criminal Appeal.

However, there are times when bail can be applied for more than once, prior to further the application to a higher court.  These are as follows;

  • You didn’t have representation by a qualified lawyer as part of your first bail application
  • There is new information that you have to tell the court about why you should get bail
  • There has been a change in circumstances
  • You are under 18 years of age and the last bail application was made on your first appearance for the offence.

If a bail application was made to the local court and it was refused, it is worth considering if any of the above criteria apply to your case.  Given the long wait times for Supreme Court bail applications (4-8 weeks) reapplying via local court means you could have your matter heard sooner (2 day wait).  If you are refused again or none of the above reasons apply, the bail application can then still be escalated to the Supreme Court.

What happens if I breach my bail?

If you fail to attend court or to obey the conditions imposed as part of your bail, you can be arrested for ‘breach of bail’.  This could result in anything from a warning to the bail being revoked altogether.

It is best to contact your criminal lawyer for advice if you breach bail and/or are arrested for doing so.   Your lawyer will be able to advise on the best course of action.

The type of breach and how serious it is perceived to be by the arresting officer will determine what happens as result.  Serious breaches like failing to attend court without reason, for example, may result in being brought before the court and having bail revoked.  Whereas for less serious breaches, like running late to report to police but with a good reason for your lateness, for example, you will likely be let off with nothing more than a warning.   The decision is up to the police officer.

If arrested for a serious breach of any of your bail conditions and brought before the court, the court can chose to do any of the following; i) release you on the same bail conditions, ii) to give you new bail with different conditions or iii) to refuse you bail completely. 

If bail is refused, you will remain in custody until your next court date, or until another bail application is made and bail is granted. Speak with your criminal lawyer about filing a new bail application.

Do I need to give the court bail money?

Not all cases require money to be deposited with the court for bail; however, where there is a risk of failing to appear, it may be a condition that assists a person in obtaining bail. If money is deposited, the money will be returned so long as the person appears at court. If they fail to appear at court and ‘abscond’ then the money will be forfeited to the court.

Obtaining bail for a range of offences

Our solicitors have obtained bail for clients charged with many offences, including:

Lawyers for Bail Applications Sydney

Australian Criminal Law Group have a team of lawyers that are experienced with bail applications.   Our bail application lawyers are well versed in the requirements for a successful bail application, the supporting information needed and how to present the supporting evidence to ensure the applications success.

If you or a loved one needs help with an application to be granted bail, please contact us on (02) 8815 8167 to arrange an appointment to speak with one of our solicitors at our SydneyParramatta, or Blacktown offices. 

 

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This information is intended as a general guide to law only.  It should not be relied on as legal advice and it is recommended that you speak with a qualified lawyer about your situation.

Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, Australian Criminal Law Group make no warranties or representations as to its accuracy. 

 

Sources:

Bail Act 2013 No 26:  Current version for 27 March 2021 to date (accessed 11 August 2021 at 0:35)

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