Bail is defined as the release of a person charged with an offence, whilst they are awaiting sentencing by the Court. When you are charged with a criminal offence by the police, the police make a determination as to whether bail should be granted. If the police do not support you being released on bail, you will be held in remand, usually at a police station, until you are brought before a Magistrate who will make the ultimate determination as to whether bail should be granted.
How Bail is determined in NSW
Determinations as to whether Bail is granted in NSW are made under the Bail Act 2013 (“the Act”). Section 8 of the Act gives the court the power to do the following:
- Release you without bail for the offence;
- Dispense with bail;
- Grant bail (with or without the imposition of bail conditions); or
- Refuse bail (with you being held on remand until the outcome of your criminal matter).
When a Court is considering granting bail, they must apply a two-step process.
Step 1: Is the offence levied against the accused a “show cause” offence?
Section 16A of the Act holds that when making a bail decision, the court must consider whether you are being charged with a show cause offence. A show cause offence is an offence that you must demonstrate as to why being held on remand would be unjustified. A list of what is considered a “show cause” offence can be found at Section 16B of the Act.
If you have been charged with a show cause offence, you must demonstrate to the court your detention is not justified. If you are unsuccessful in doing this, then bail will be denied, and you must remain on remand for until sentencing. If you are successful in showing cause, or if you have not been charged with a show cause offence, the Court will move on to the second step of the bail process.
Step 2: Is there an unacceptable risk in granting the accused bail?
Following this, the Court must consider whether there is an unacceptable risk in granting you bail. As per section 19 of the Act, a bail authority must refuse bail if the bail authority is satisfied, that there is an unacceptable risk. For the purposes of the Act, section 17 of the Act outlines that a bail concern is a concern that you, if released from custody, will either:
- fail to appear at any proceedings for the offence;
- commit a serious offence;
- endanger the safety of victims, individuals or the community; or
- interfere with witnesses or evidence.
If the Court has determined that you pose an unacceptable risk, then bail is refused. However, if you do not pose an unacceptable risk, then the Court can choose to order an unconditional release or, if there are any bail concerns, order a conditional release.
What are common bail conditions?
- Residing at a particular address;
- Reporting to a local Police station;
- The deposit of a sum of money;
- Abiding by a curfew;
- Surrendering your passport;
- Not approaching any witnesses; and
- Not to associate with any co-accused.
If you have been charged with a criminal offence, it is important to seek legal advice.
Your team at Barker Evans have considerable experience with such matters and are ready to assist and guide you. To best assist your legal team, make sure you give them all documentation given to you by the police. This can include a Court Attendance Notice, Facts Sheet and a Bail Acknowledgement Form, which should all be provided to you by the Police when you are charged.
Should you require legal assistance, we are only a phone call or email away. Please feel free to contact us on (02) 8379 1892 or at info@barkerevans.com.au.