The legal process of requesting bail is known as a Bail Application.
Bail is a legal term that refers to releasing an accused person from custody while they await the hearing of their criminal matters before a court.
This is usually termed a “Release Application”, and the application is conducted in the Local Court before a Magistrate. Even the most serious offences such as Murder, Sexual assault etc start in the lowest jurisdiction, the summary court called the Local Court. These more serious case filter up to the higher courts known as the District and Supreme Courts.
When an accused person is charged with a criminal offence, they will be taken into custody by a police officer. If bail is refused, they will be taken by police to the nearest Local Court, and a Magistrate will decide their release. If bail is refused the accused person will be held in remand in a correctional facility or gaol until their matter is finalised. However, once a person is bail refused, an accused may make, under certain circumstances, a further bail application in the Local Court.
Alternatively, the accused person can file an application in the Supreme Court to have the decision determined by a Judge. This can be a very stressful and difficult experience, especially for those who have never been in custody.
However, the law recognises many good reasons why an accused person should be released on bail, even if they have been charged with a serious criminal offence.
Will they Appear?
The most important factor that the court will consider when deciding whether to grant bail is the likelihood that the accused person will appear in court to meet their court obligations.
If they are released, the court will consider the nature and seriousness of the offence, as well as the accused person’s ties to the community.
For example, if an accused person has a stable income, job, family, and or home, the court is more likely to favour the grant of bail. However, if the accused person has a lengthy criminal history, a history of failing to appear, failing to obey court orders, is considered a flight risk, or is likely to commit further offences, the court may be less likely to grant bail and so declare they are an unacceptable risk to be allowed to be free in the community.
Unacceptable Risk Test
As alluded to above, the court will consider whether to grant bail whether the accused person poses an “unacceptable risk” to the community. For example, if the accused person is charged with a violence offence, the court may be less likely to grant bail if it is believed that the accused person poses an ongoing danger to the victims or witnesses or to the community in general by not being satisfied they wouldn’t commit further similar offences.
Conditional Bail
It is important to note that different types of bail and conditions can be applied by the court in releasing an accused person which gives the court some comfort in being able to regulate their conduct while free in the community awaiting their trial.
For example, the court can impose conditional bail, which may require the accused person to adhere to strict conditions such as:
- Reporting to a police station on a daily basis.
- Not approach or contact prosecution witnesses.
- Surrendering their passport.
- Not approach any points of interstate or international departure.
- Curfews and bail checks by police.
- Abstain from alcohol or drugs (unless prescribed by a doctor).
- Not entering particular suburbs or frequent locations (unless for work).
- Deposit or forfeit money, or have another person, called an ‘acceptable person’ forfeit or deposit money to ensure the accused person complies and appears to meet their court obligations.
In certain situations, and charges the prosecution will object to a bail application, in which case the court will have to weigh the evidence presented by the prosecution and the defence before making the final decision. This is particularly the case where a person has been charged with a very serious criminal offence and/or has a prior criminal record for similar offences, and or whether they are currently on a court-ordered good behaviour bond, parole, or other court-ordered bond sanction.
The success of a bail application will depend significantly on the personal circumstances of the accused, the allegations, and the strength of the prosecution case. These will be presented to the court in a Fact Sheet along with any criminal history of the accused.
Show Cause Test
Usually, it is a matter for the Police Prosecutor to demonstrate on the balance of probabilities that the accused person is an ‘unacceptable risk’ to be released into the community. However, sometimes, that onus shifts to the defence solicitor to demonstrate that the accused’s continued detention is not justified. This is an additional test to the ‘unacceptable risk’ test, although the courts have acknowledged there is some overlap. Nevertheless, if a person is charged with a ‘Show Cause’ offence, such as:
- An offence that carries life imprisonment.
- A serious indictable offence involving sexual intercourse if a person is under the age of 16. Any serious personal violence order if the person is already convicted of a serious personal violence offence. Any serious offence involving a weapon.
- Any offence that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or plant.
- Any offence that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug.
- Any serious offence committed by a person already on bail, parole, supervision order, or failing to comply with a supervision order Attempting to commit, assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit any of the above offences.
It will be very difficult, but not impossible, given the right strict conditional bail conditions, for that person to be at liberty in the community while awaiting trial.
Take Away
In general, the main goal of bail applications in New South Wales is to ensure that accused persons have the opportunity to prepare their defence while also maintaining their employment, family, and community connections while their case is pending. This way they can have a fair trial and the community is safe.
Any defence solicitor knows that if their client is in custody while awaiting their trial, it can be extremely difficult and frustrating for the criminal justice process to obtain proper instructions to prepare a thorough defence.
Summary
A bail application in New South Wales is a request made to a court by an accused person, asking to be released from custody while awaiting trial. The court will consider various factors when deciding whether to grant bail, such as the accused person’s ties to the community, the nature and seriousness of the offence, and the likelihood that the accused person will appear for trial if released on bail, as well as any conditions that should be applied.
What should you do if you are arrested and are stuck in custody or bail refused?
Call us immediately if you have been charged with an offence, and are bail refused, we can give you options as to whether you have a chance at being released.
Call McDonald Law now on (02) 8824 4736 or 0411 460 034 to speak with one of Sydney’s most experienced lawyers who has been doing bail applications for over 20 years.
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