Bail Applications

Lawyers NSW

Bail at Lawyer Call

If you or a loved one have been arrested and refused Bail by the Police, it is strongly recommended that you speak to one of our experienced Criminal solicitors at Lawyer Call today. We can assist you with the bail application process, and Court Representation making strong submissions to the Magistrate as to why you should be granted bail.

 

What is Bail?

Bail is defined in the Bail Act 2013 as the authority to be at liberty (not in custody), for an offence or an alleged offence. It involves the temporary release from custody of an accused person awaiting their trial or sentence date in Court.

 

What is Police Bail?

This is the first type of bail consideration after someone is charged, and it is usually done at the police station. It is made by a police officer after you have been arrested and given a notice to attend Court. A police officer with a ranking of Sergeant or higher, must make a decision as soon as is reasonably practicable, regarding whether to:

  1. Release you without bail

  2. Grant you bail and impose certain conditions, or

  3. Refuse you bail

 

What is Court Bail?

If you have been refused Police bail, a police officer must bring you before a Local Court Magistrate to have your matter in relation to obtaining bail until a further Court date. This is known as Court Bail.

Parramatta Local Court is where weekend and public holiday bail courts are held for adult hearings of persons arrested in Sydney, and juveniles arrested from the entire state of NSW.

How do I get Police Bail?

Firstly, a Police officer must respect your right to contact a lawyer  or ‘other person’ regarding your bail situation. They do however, have the right to refuse you a phone call to the ‘other person’  in those circumstances where they have the suspicion that your contact may result in you tampering with evidence, or aiding an accomplice escape. Police officers rarely have any excuse for not allowing you to contact your lawyer.

A Police officer can grant you bail on conditions that you will appear in Court after your release, and that you will comply with reporting obligations at the local police stations, and abide by residential curfews.

 

You have a right to have the initial refusal of Police bail reviewed by a Senior Police officer.

If you make an application for Bail, you will be taken before a Magistrate in the Local Court, where your Bail can be dispensed with, granted or refused. It is strongly recommended that you call our office at Lawyer Call before proceeding with a Bail Application in the Local Court.

 

How do I get Court Bail?

The Local Court determines bail matters for summary offences (these are those offences that are dealt with in the Local Court). District Courts deal with more serious indictable offences.

 

For Bail purposes, offences are classified in two ways:

A.  ‘Show Cause’ Offences

These include offences that attract jail terms of life imprisonment and serious indictable offences as outlined in section 16B of the Bail Act 2013.

For such offences, the usual disposition is that you are not to be released from custody, unless exceptional and very good reasons are given justifying your release.

When determining whether to grants bail or not, the Court will have to address four aspects, known as ‘Bail Concerns’. These include:

  • Whether you will threaten witnesses or tamper with the evidence

  • Whether you will endanger the safety of the victims or other members in the community

  • Whether you will fail to appear to Court

  • Whether you will commit any serious offences

 

The Magistrate or Judge, has to firstly, consider if there any bail concerns, and subsequently carry out an assessment which would determine whether the risk can be restrained through the imposition of a certain bail conditions to mitigate those concerns. If the risk is considered unacceptable and too great, then the Court will refuse the bail.

You will need an experienced Criminal Lawyer to address the Bail concerns and put forth arguments before the Court that highlight the fact that you do not pose an unacceptable risk.

 

B.  ‘Non Show Cause’ Offence

For such offences, the usual disposition is that you are to be released from custody, unless there exists reasons for why you should be in custody.

Even for ‘Non Show Cause’ offences, if there has been a history of not complying with previous Court orders, these may be taken into account and heavily influence the Court’s decision as to why you should be in custody.

What will happen at a Bail Application?

The Presiding Magistrate or Judge will want to hear the evidence in support of your application through your lawyer, and by signed affidavits of the statements of supporting people. This may include people who will post money or property assets to secure your bail. It is important that these people are contacted on your behalf, and that the right documentation is filed with the Registry prior to the Hearing date.

Our team at Lawyer Call is on hand to assist you and liaise with your loved ones throughout this difficult time, to make sure that the best plan of action is in place to maximise your chances of Bail.

What does it mean to have my Bail ‘dispensed with’?

If your bail has been ‘dispensed with’, this means that you are to remain at liberty until your Court date, without any Bail conditions. If the Court has not made an order in relation to Bail, it is considered that Bail has been dispensed with for that offence.

There are offences where Bail cannot be dispensed under any circumstances. These include:

  • Serious Firearm offences

  • Repeat property offences

  • Breach of supervision orders

  • Certain serious offences under the Drug Misuse and Trafficking Act

  • Offences which would automatically carry lifetime parole

 

What are Presumptions Against Bail?

There is a general presumption in favour of bail, on the condition that you do not pose an unacceptable risk to the community.

There are however exceptions to this presumption, where Bail will not normally be granted except in extraordinary cases due in large part, to the seriousness of the offences.

 

These include:

  • Murder

  • Attempted Murder

  • Manslaughter

  • Supply of prohibited drugs - ongoing basis

  • Kidnapping

  • Robbery

  • Aggravated Sexual Assault

  • Offences under the Drug Misuse and Trafficking Act 1985 where the quantity is twice the indictable quantity amount

 

There is also a presumption against Bail for a person who has been previously convicted of any of the offences listed above.

 

Bail would also be usually rejected if the fresh offence was committed while the person was either:

  • In custody

  • On Bail

  • Serving a period of parole

  • Serving a sentence outside of custody

  • On a good behaviour bond or supervision order

 

Factors Influencing Bail:

The Court will often consider many combined factors when assessing whether Bail should be granted. There are four main categories that need to be independently examined and resolved before a decision on Bail is made. These are :

A. Will the person appear in Court in respect of the current offence? Considering:

  • Previous Criminal history

  • Current living situation

  • Criminal ties and gang associations

  • Strength of the Police evidence and severity of potential sentence

  • Previous breaches of Court orders and failures to appear

  • Subjective personal details such as standing in the community, employment opportunities, family responsibilities

B.  Are the interests of the person considered without prejudice? Considering:

  • Are they under the age of 18, or Aboriginal or Torres Strait islander, or mentally ill, or has an intellectual disability?

  • Are they in need of physical protection?

  • Are they in danger of physical injury?

  • Are they free to prepare to Court proceedings?

 

C.  Are the interests and protection of the public met? Considering:

  • Seriousness and impact of the offence

  • Is this case of re-offending by the same individual?

  • Have previous bail conditions been breached?

  • Is the person likely to commit another offence while on Bail if it is granted?

 

What are some Bail Conditions?

 

If you have been granted Bail subject to conditions, you may potentially be required to do abide by any one or more of the following:

  • That you may enter into an agreement where you will forfeit a certain amount of money if you fail to comply with the conditions of your Bail

  • That you surrender your passport and not leave the country

  • That you enter into an agreement to comply with certain behavioural requirements, for example to abstain from alcohol and illicit substances

  • That you enter into rehabilitation or treatment facility

  • That you are not to enter certain premises such as Licensed venues/pubs

  • That you abide by a certain curfew such as not leaving residence at night between certain hours, or without the presence of another person.

 

How do I vary my Bail?

Often when you have been granted bail, there will be conditions placed on the bail that you have been given, which may determine who you can associate with, your living conditions and the times you are allowed to be outside.

A standard bail variation  may involve a simple change in address, which is also important, as a failure to keep your residential details update, may result in you breaching your conditions, and ultimately your bail. There are also times when more complex arguments need to be presented for the purposes of having the reporting times and curfew periods significantly reduced from the original bail granted.

Contact Lawyer Call to discuss Bail variation options for you or your loved one.

What is a Bail Undertaking?

If you have been granted bail, you would have entered into a bail undertaking, The usual undertaking is that you will appear before the Court as directed, and that you have a duty to report to the court any change in your residential address.

A Bail Undertaking may also come in the form of lodging money or assets as security to help ensure that you will appear at your next Court date. You will sign the bail undertaking before being released.

The surety, or person that has lodged money on your behalf for the bail, will loose that sum if you are found guilty of failing to appear.

 

Can my Bail Application be heard again?

In circumstances where your application for bail has already been determined, the Court will refuse to hear any further bail application.

There are some exceptions to this which could justify a fresh application in cases where:

  • If you were not legally represented at the initial bail application, and have now engaged a solicitor

  • If there exists certain information to your new bail application that was not shown to the Magistrate or Judge in the initial application

  • If there have been new developments in your personal circumstances which would justify a review of the bail decision

What happens if I breached my Bail?

It is an offence to fail to observe a Bail condition, or not attend court without a reasonable excuse.

The Court may issue a warrant and may revoke your Bail. A Police officer may also arrest you without a Police Warrant. Police have a discretion regarding what action they will take regarding breaching a condition of your bail. They will often issue you with a Court Attendance Notice for you to appear before a Local Court, and then ask the Court to revoke your bail.

If you fail to appear to Court as a result of Bail, you can face up to 3 years imprisonment or a maximum fine of $3,300.

What is Supreme Court Bail?

 

If you have had your bail application refused in the Supreme Court, you have a right to make an application for Supreme Court bail.

This application will be heard before a Judge in the Supreme Court, and you may have the opportunity to give evidence, and call upon other people to give evidence in support. Often, such evidence can include a guarantee for secured financial, residential or employment support. This may involve posting up Surety money, Tenancy Agreement or signed leases, or employment contracts.

Summary – Options for Granting of Bail

The Court has to ultimately make a determination on whether or not the person in the Bail Application is an unacceptable risk, and what action is most appropriate

  1. If there are no bail concerns, then the bail should be granted unconditionally

  2. If there are bail concerns, but are such that they can be reasonably mitigated by certain conditions, then Bail should be granted conditionally.

  3. If there are bail concerns, and no amount of bail conditions could be initiated to adequately address all the concerns, then an unacceptable risk exists, and Bail should be denied.

  4. We recommend you contact Lawyer Call as a priority to discuss your bail situation. For out of hours and urgent bail applications, contact our After Hours Direct Line 0477 LAW 111 (0477 529 111). 

 

 

 

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