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Bail Conditions

In most cases where a person applies for bail, the court can only refuse bail if there is an unacceptable risk and that risk cannot be mitigated by the imposition of appropriate bail conditions. One of the tasks of your lawyer when preparing a bail application is to formulate conditions that anticipate and alleviate any concerns the court may have about granting bail. Bail conditions must be reasonable, proportionate to the offence, appropriate to address the risk, no more onerous than necessary and reasonably practicable. This article deals with bail conditions in New South Wales, which are governed by the Bail Act 1913.

Common bail conditions

Examples of conditions that a court can impose are as follows:

  • Conduct requirement – that the accused person do or refrain from doing anything, for example:
    • To be at court on a certain date – this is the primary purpose of bail
    • Contact restrictions – not to contact certain persons, usually an alleged victim
    • Location restrictions – not to go to certain places
    • Residential – to reside at a certain address
    • Curfew – To be at a certain address at certain times
    • Reporting – To report to police at certain times
    • Surrender of passport
  • Security – that the accused or an acceptable person (often a family member) offer to forfeit a certain amount of money in the event that the accused does not attend Court as required (this condition can only be imposed if there is an unacceptable risk the accused will fail to appear)
  • Character acknowledgment – that an acceptable person provide a written acknowledgment to the court that they regard the accused person as a responsible person who is likely to comply with his or her bail acknowledgment
  • Accommodation requirement – that suitable arrangements be made for the accommodation of the accused person before he or she is released on bail
  • Enforcement condition – requiring the accused to comply with one or more specified kinds of police directions, for example random urine testing. This condition can only be imposed at the request of the prosecutor.

Cash Bail

A court has the power to grant you bail on the condition that you or an acceptable person deposits cash or security. If a court makes an order that the cash or security be deposited, the money will have to be handed in to a court, jail or a police station.

The court will want to know that the money or security belongs to the person handing it over and not someone else. This means that you or the acceptable person will have to show the court where the money or security came from. A bank statement and a bank withdrawal receipt is usually enough for cash deposits.

The money or the security will remain with the court, jail or police station while the bail remains in force. If you do not appear or comply with terms of your bail, the money or security can be forfeited. If this occurs, the person depositing the cash or security can apply to the court for an order that the money or security not be forfeited but returned to that person.

How much Cash Bail is Enough?

We are commonly asked: “How much money should I put up for bail?” The answer is that it is up to the judge or magistrate as to what they believe is acceptable. There is no set amount of money that will secure bail.

It has been our experience that $20,000 has been sufficient to secure bail for a serious offence. Obviously the larger the amount of cash/security deposited the more likely bail is to be granted.

Many people would prefer to use their house or other property as security which means that their cash is not tied up and it allows them to deposit a larger amount of bail.

Bail conditions: Property as Security

Depositing property as bail is a more complex process than cash as you will need to prove the value of the property, the amount of equity you hold in the property, and you may also need the approval of your bank.

The practical difficulties associated with offering property as security may result in your release being delayed so it is very important to be well organised.

Bail conditions: Promise to Forfeit Cash

The court has the power to grant bail on the condition that you or an acceptable person agree to forfeit an amount of cash or security if you fail to comply with your bail. In this case, you don’t have to hand the money or security over, but it will have to be handed over if you don’t comply with your bail.

This is a less secure condition and is used in less serious cases.

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

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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