This article explores the key features of the bail process under Criminal Law in NSW, including how bail is determined, what conditions may be imposed, when bail can be refused, and what rights an accused person has.
What is Bail?
Bail is an agreement that allows an accused person to be released from custody on certain conditions until their matter is finalised in court. It balances two key principles of Criminal Law:
If bail is granted, the accused agrees to abide by certain conditions. If bail is refused, they must remain in custody until their trial or until a successful bail application is made.
How is Bail Decided in NSW?
The Bail Act 2013 (NSW) sets out the rules governing bail. When considering whether to grant bail, the court assesses what is known as the “unacceptable risk test.”
The court looks at whether the accused poses an unacceptable risk of:
Failing to appear at court.
Committing a serious offence while on bail.
Endangering the safety of victims or the community.
Interfering with witnesses or evidence.
If the court determines there is no unacceptable risk, bail is usually granted. If risks exist, the court may impose strict bail conditions to mitigate them.
Bail Conditions
Bail conditions are designed to reduce risks and ensure the accused complies with the law. Common bail conditions include:
Reporting to police regularly.
Surrendering a passport to prevent leaving Australia.
Residing at a specific address.
Curfews or restrictions on movement.
Non-contact orders preventing communication with alleged victims or witnesses.
Bail is not guaranteed. Courts in NSW can refuse bail in situations where the risks are deemed too high, particularly for serious offences such as:
Murder.
Sexual assault.
Serious drug trafficking.
Violent offences.
In some cases, the law applies a “show cause” requirement. This means the accused must demonstrate why their detention is not justified. For example, if someone is charged with a serious indictable offence while already on bail for another serious offence, they must “show cause” to be released.
Applying for Bail
Bail applications can be made at different stages:
Police bail: When someone is first arrested, police can decide whether to release them on bail.
Court bail: If police refuse bail, the accused must be brought before a court as soon as possible, usually the next day.
If bail is refused, further applications can be made, but the court usually requires new information or a change in circumstances before hearing another application.
Variation of Bail Conditions
If bail conditions are too restrictive or no longer appropriate, an application can be made to the court to vary them. For example, if an accused person’s circumstances change (such as gaining employment or moving residence), the court may agree to alter reporting times or curfew restrictions.
What Happens if Bail is Breached?
Breaching bail conditions is taken very seriously under Criminal Law in NSW. Possible consequences include:
Arrest by police.
Bail being revoked.
The accused being placed back into custody.
Facing additional charges for breaching bail.
It is therefore essential for an accused person to fully understand and comply with all bail conditions.
Rights of the Accused
Under Australian Criminal Law, individuals have important rights during the bail process, including:
The right to apply for bail.
The right to know the reasons if bail is refused.
The right to legal representation.
The right to appeal bail decisions in higher courts.
Seeking advice from an experienced Criminal Lawyer is critical to protecting these rights and ensuring the best possible outcome.
Why Legal Help is Essential
Navigating the bail process can be complex and stressful. The consequences of being refused bail are significant, as time spent in custody before trial can impact employment, family life, and the ability to prepare a strong defence.
A skilled Criminal Law solicitor can:
Prepare persuasive bail applications.
Argue for conditions that are reasonable and fair.
The bail process in NSW plays a vital role in balancing community safety with the rights of accused individuals. Understanding how bail works, what conditions may apply, and the importance of legal representation can make a significant difference in the outcome of a case.
At New South Lawyers, our experienced Criminal Law team is ready to help you navigate the bail process in NSW. We provide tailored legal advice, fight for your rights, and work to secure the best possible outcome.
