What is bail?
In NSW bail is mandated by the Bail Act 2013 (the Act).
The Act defines bail as the authority to be at liberty for an offence. This means that if you’re granted bail you will be allowed to remain in the community while you await the outcome of your court proceedings.
Bail is an important aspect of the presumption that an accused is innocent until proven guilty. It is grossly unfair for an accused to be deprived of their liberty before their matter has been heard by the court.
However, there are circumstances where an accused will be held in custody until their matter is decided by the court. This is referred to as being held “on remand”.
Bail can take different forms, and there are a number of factors that must be considered when determining whether to grant bail.
Who can grant bail?
The Act outlines that bail can only be granted by a “bail authority”. The two main “bail authorities” are the police and the courts.
A police officer who is of or above the rank of sergeant has the power to grant an accused bail.
If the police do not grant an accused bail, they are required to bring the accused before a court “as soon as practicable”. This will usually be on the same day or the following morning.
How does the court decide whether to grant bail?
The process adopted by the court in determining whether to grant bail to an accused will depend on the offence with which the accused has been charged.
The first step is to consider whether the accused has been charged with a “show cause” offence. The second is to apply the unacceptable risk test.
“Show cause” offences
A “show cause” offence is a really serious offence, such as murder or a serious sexual offence.
A list of “show cause” offences is contained in section 16B of the Act. Some of the offences listed under section 16B include:
- Offences that are punishable by life imprisonment
- Serious indictable offences that involve sexual intercourse with a child under the age of 16 (or the infliction of actual bodily harm with intent to have sexual intercourse with a child under the age of 16)
- Serious personal violence offences
- Certain firearms offences
If an accused has been charged with a “show cause” offence, then they have the burden of demonstrating why their detention is unjustified.
If an accused fails to demonstrate that their detention is unjustified then bail will automatically be refused, and the accused will be held on remand.
The Act does not outline the requirements that must be fulfilled in order for an accused to “show cause”. Instead, a determination will be made on a case by case basis.
However, the Supreme Court has considered the following factors when making a determination on the matter:
- Whether it is the accused’s first time in custody
- If holding the accused in custody would cause more hardship to the accused than it would to an average person because of the accused’s age or health
- The strength of the prosecution’s case
If an accused is able to “show cause” then the court will apply the unacceptable risk test.
Unacceptable risk test
Next, the courts will address four key bail concerns, which are:
- Will the accused attend court for future proceedings?
- Will the accused commit a serious indictable offence?
- Will the accused endanger any person or the community?
- Will the accused threaten witnesses or interfere with evidence?
The court will consider a number of factors to determine if an accused poses an unacceptable risk of doing any of the above. These factors are outlined in section 18 of the Act and include:
- The accused’s background, including their criminal history
- The nature and seriousness of the offence in question
- The strength of the prosecution’s case
- Whether the accused has a history of violence
- Whether the accused has criminal associations
- The length of time the accused is likely to spend in custody if their bail is refused
- The conduct of the accused person towards any victim of the offence
If the court determines that no unacceptable risk exists, they will usually release the accused on bail unconditionally.
However, if the court is concerned about a potential risk, they may impose conditions on an accused’s bail in order to mitigate that risk.
Conditions that may be imposed on an accused often include things like surrendering their passport, residing at a particular address or refraining from approaching a certain person or area.
There are often many months between being charged with an offence and having the matter finalised before a court.
Therefore, it is extremely important to seek advice and representation from a criminal lawyer, who can guide you through the process and give you the best prospect of being granted bail.
If you need advice or representation for a bail application contact Hamilton Janke Lawyers 24 hours a day, 7 hours a week on 4038 1666.
Flow Charts have been taken from the Bail Act 2013 (NSW)