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Bail - release pending trial

Bail laws in New South Wales have changed. For information see Legal Aid NSW A guide to bail.

This section deals with:

  • your entitlement to bail;
  • bail conditions; and
  • breaching bail.

Your entitlement to release on bail

Bail is simply an agreement to appear in court to face a charge. It means remaining at liberty (often with some conditions), as opposed to being held in custody before the hearing of a criminal charge. For example, bail is regulated in New South Wales and Victoria by their respective Bail Acts.

Bail can be granted (or extended, or denied) upon arrest, at your first appearance in court, or at any appearance after that. If you are arrested, ask the police for bail. The normal right to bail is based on the legal presumption that you are entitled to be considered innocent until proven guilty.

However, State law has repeatedly tampered with this right, sometimes removing it for charges of certain serious offences, and in some States for domestic violence. In New South Wales bail law has replaced a general presumption in favour of bail with an 'unacceptable risk' test, to be applied to all serious charges.

Police are required as soon as 'reasonably practicable' to determine whether to grant bail or to refuse it; and if they refuse it, they must bring you before a court. After police make a decision about bail, they are also required to inform you that you may communicate with a lawyer or another person of your choice regarding that bail, and to provide facilities for you to do so. However, legislation also allows police to refrain from giving this assistance if they 'believe on reasonable grounds' that this may risk you not attending court, or the loss, destruction or fabrication of evidence. Police misconduct over bail can really only be dealt with by a complaint to the Ombudsman, or by a civil action.

If a police officer does not grant you bail, you may request a review of that decision by a senior police officer. If bail is still refused, you can ask the magistrate for bail at your first appearance in court. If the magistrate refuses, you can apply to the Supreme Court. However, repeated appeals to the Supreme Court are generally not allowed. Judges of the District Court (County Court in Victoria) can also grant bail if the matter is before them. If you apply for bail, but are not 'before the court', you must arrange to have an application delivered to the Registrar or Clerk of the relevant court.

If you know the police intend charging you with an offence, your chances of bail will be improved if you make an appointment to see them with a lawyer. If you do this, go early in the day and preferably Monday to Thursday. Then if the police refuse bail, you will still have time to argue for it in the Local Court and may not have to spend the night or weekend in jail.

The standard in the past was that there is a general presumption for bail. This meant you were entitled to bail unless the police or prosecution made a good case against it. With all minor offences you should be granted bail unless you have failed to appear on previous occasions.

Many parliaments, however, have removed the presumption in favour of bail for a range of more serious charges.

Regardless of the current state of the law, you should argue a case for your release on bail.

The main issues police might raise to oppose your normal right to bail are that you:

  • are unlikely to appear in court to face the charges;
  • are likely to threaten or interfere with witnesses;
  • are about to commit further offences;
  • have no family or work ties to stop you moving on and avoiding your court appearance;
  • are incapacitated by drugs or alcohol, or are in danger of physical harm.

If you have to argue for bail, you will have to present reasons and perhaps evidence to contest any issues that have been raised to prevent you getting bail.

A case for bail must be proved to the civil standard, that is, on the balance of probabilities ('more probable than not'). In making this determination, the court may consider any information or evidence it regards as trustworthy or credible in the circumstances.

Many applications may be made to a court for bail. However, Supreme Courts will generally only hear repeat applications for bail if there are 'special facts or circumstances'.

Conditions on bail

Bail is just an agreement to appear in court and might not involve the lodgement of any money. However, there are a range of conditions which may be attached, such as one or more of the following:

  • that you or someone else agree to forfeit some money if you fail to appear (though the sum of money must be within your means);
  • that you stay away from a person or an area;
  • that you surrender your passport;
  • that you report regularly to police;
  • that you attend a drug treatment program;
  • that you lodge some cash bail.

You can argue against or try to negotiate suggested conditions, but if the magistrate insists on them, your only option is to accept the conditions or to refuse bail and therefore remain in custody. You can apply to vary (for example, relax) the conditions of bail, but this often means waiting in a lock-up or prison for as long as two or three weeks. It may be possible to vary the conditions of bail after it has been granted.

Sometimes cash bail must be lodged with the court; at other times, a surety is all that's required (that is, a promise to pay a sum of money if the person charged does not attend). The cash or surety may be lodged by you or an acceptable third party.

Bail conditions should not be oppressive, nor beyond your means. The object of bail is to ensure you attend court, not to control your life. However, bail conditions are often 'rough justice' and you may have to take what you can get.

Bail must be 'continued' by the court at each new court appearance. In theory, bail may be granted, varied or denied on each such occasion. However, the more you meet the requirement to attend court, the harder it is for police to argue that bail should be denied. Turning up to 'meet bail' each time is to your credit. You may also use this fact to argue that oppressive bail conditions should be relaxed.

If you are on bail and no specific direction is made by the court at a new court appearance, then the court is taken to have continued bail.

Failing to appear in court

It is usually an offence to fail to appear in court, without 'reasonable excuse' after being granted bail. If you fail to appear, you are required to provide this 'reasonable excuse'. Substantial penalties may be applied for not appearing in court, after being granted bail. Of equal importance is the fact that a 'fail to appear' on your police record will make it very difficult for you to get bail in future. In addition, you may forfeit any security that you or your friends may have lodged.

Bail money is not always forfeited if you fail to appear. Seek legal advice on this. The NSW District Court, for example, has a division where you (or someone who has put up bail for you) could argue your case against losing bail money. The test is usually whether the person putting up the surety took 'all reasonable steps' to ensure that the charged person attended court. If such steps were taken, the money may not have to be forfeited.

If you sign a surety or put up bail for someone else, make sure you keep detailed notes of the contact and communications you have with the person for whom you've lodged bail. You may one day have to prove that you did take 'all reasonable steps'.

If you are on bail, make sure you appear each time your case is 'mentioned' in court. If you appear at court and there is no record of your needing to appear, make sure an officer of the court takes your name, in case there's a mistake in the court's paperwork. Don't pay for their mistakes!