Bail Conditions

The relevant test when granting bail in New South Wales is whether there is an unacceptable risk that a person will either fail to appear in the proceedings, commit a serious offence whilst on bail, endanger the safety of the victims, individuals or community or interfere with witnesses or evidence. Bail may be granted at any time during the lifespan of a matter and may be granted unconditionally or with bail conditions. If one or more of the bail concerns have been raised, you will be given the opportunity to propose bail conditions to alleviate the concerns the Court has raised. Bail conditions must be reasonable, proportionate to the offence, appropriate to address the risk, no more onerous than necessary and reasonably practicable. 

Common Proposed Bail Conditions

• Residency Condition
• Passport Surrender Condition
• Reporting Condition
• Non-Association Condition
• Curfew Condition
• Place Restriction Condition 
• Drug and/or Alcohol Abstention Condition
• Surety Condition
• Single Mobile Phone Use Condition

Surety and Security

A surety condition involves an acceptable person (someone over the age of 18, with no criminal record, that has a residential address, is known to the accused, not subject to debt recovery action or have been bankrupt) whose role is to take responsibility for ensuring an accused person appears at Court. A surety may forfeit or otherwise enter into an agreement to forfeit money or property as security if a person fails to appear at Court as required.

The amount of the security is subject to your own discretion and the more serious the matter, the more money the Court may require to satisfy them of the risk. 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. Some people 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.

If the condition is that you agree to forfeit without security, you will be required to provide a current bank statement with the details of your financial capacity to pay the required amount. Alternatively, if the condition is that you agree to deposit, you must bring the cheque or cash with you to the Court Registry. You must be able to prove that the money belongs to you by providing a current bank statement showing the withdrawal and recent transaction history. Once the matter is finalised, or bail is dispensed with, you can lodge a bail refund application at the Court Registry. This condition is usually proposed when the Court has raised ‘fail to appear’ as a risk.

Residence Condition

A residence condition requires a person to live at a specified address throughout the duration of their matter. This is often a person’s primary place of residence however, if the Court has raised the victim’s safety as a risk, an alternative address in a suburb far away would be more appropriate. 

Enforcement Condition

An enforcement condition allows a Police Officer to conduct drug and/or alcohol testing to ensure an accused person who is subject to a drug or alcohol abstention condition is being compliant. They may conduct these tests at random by attending the accused person’s residential address or otherwise, if they see the accused person in public and stop them for a compliance check. If a person on bail refuses to follow the direction issued by Police, such as to produce a breath sample in a breath analysis machine, this may be considered a breach of bail. Police have discretion to take no action on the breach, give the accused person a warning, serve them with a Court Attendance Notice if they believe the breach is also an offence itself, arrest the accused and take them before the Court as soon as practicable or apply for a warrant for their arrest.

Passport Surrender

A condition that requires a person to surrender their passport is often proposed in circumstances where the accused person is not an Australian Citizen or Resident and has international connections. It is often proposed in circumstances where the Court has raised failure to appear as a bail risk. This condition is often accompanied by a place restriction prohibiting a person from being within 1 km of an international point of departure from Australia.

Non-Association Condition

A condition that prohibits a person from contacting a specified person/s is often proposed when there are co-accused involved in the matter or where the Court has identified that a risk of endangering the safety of the victim or interfering with evidence or witnesses has been raised. Non-association prohibits contact in person, via electronic means as well as a third party.

What Happens If I Can No Longer Comply With My Bail Conditions?

If you can no longer comply with your bail conditions, a bail variation application to vary a person’s bail conditions needs to be filed with the relevant Court. This often happens when a person can no longer live at their bailed address. It is extremely important that if you cannot meet one or more of the conditions of your bail, you apply for a variation application immediately to avoid beaching bail and/or the Prosecution putting on a detention application to revoke your bail.