This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Bail


New South Wales’ bail laws are governed by the Bail Act 2013, which significantly changed the state’s bail laws from what they were previously. The courts now have fresh criteria to apply and a person is generally more likely to be granted bail than they were under the old act (Bail Act 1978).

The Bail Act 2013 gives the court power to:

  • Dispense with bail (ie release a person from custody without any conditions whatsoever);
  • Grant bail conditionally or unconditionally (ie release a person from custody with or without conditions);
  • Refuse bail.

How does a court decide whether to grant bail?

Section 22 of the Bail Act sets out how a court determines whether to grant bail to an accused person. The factors that a court must consider are:

  • the likelihood of the person appearing at court to answer their charges;
  • the likelihood of them committing an offence while on bail;
  • The likelihood of them harassing or endangering anyone while on bail;
  • the likelihood of them interfering with evidence, witnesses or the administration of justice while on bail;
  • the interests of the person.

If the person has already been found guilty of the offence, the court must also consider the likelihood of them being sentenced to imprisonment.

Bail for show cause offences

Show cause offences are offences for which the presumption in favour of bail is reversed and the accused person must ‘show cause’ for why they should be released from custody. Offences that are show cause offences include:

  • Serious child sex offences;
  • Serious personal violence offences where the accused has a prior record for serious violence;
  • Offences punishable by a maximum penalty of life imprisonment.

How likely is bail to be granted?

The likelihood of bail being granted to a person depends on the seriousness of the charges against them and their criminal history. While with some offences, there is a presumption that the accused should be granted bail, for others there is a presumption that they should remain in custody.

Bail conditions

When the court grants a person bail it has the power to impose a range of conditions. The conditions that are imposed on a person’s bail will depend on the nature of their alleged offending, their criminal history and what concerns the court has about their behaviour while on bail.

A person’s bail conditions may include a condition to abstain from alcohol or drugs, to adhere to a curfew. not to associate with alleged co-offenders, or to surrender their passport while on bail.

Bail conditions relating to treatment and rehabilitation can also be imposed where the offending was related to drug or alcohol use.

Can I apply for bail more than once?

A person cannot generally apply for bail again after they have been refused bail by a court. However, there are some exceptions to this rule.

A person may be allowed to apply for bail a second time if:

  • At their first bail application they were unrepresented;
  • Their circumstances have changed since their first bail application;
  • Fresh information is to be presented;
  • The person is a child and the first bail application was made on their first court appearance in relation to the matter.

Supreme Court bail

A bail application can be made in the Supreme Court. Supreme Court bail applications follow a more formal process and material in support of the application must be presented in affidavit form. A bail application may be made in the Supreme Court when a person’s criminal matter is before the Supreme Court or when a person is seeking a review of a refusal by a magistrate to grant bail.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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