What is Bail?
When you are charged with a criminal offence you may be arrested by the Police and taken into custody. You will remain in custody, initially in the Police cells and often moved to a remand facility until Bail has been granted.
Bail allows an accused person to be at liberty in the community for an offence they have been charged with until their trial commences (Bail Act 2013 (NSW), Section 7).
The decision about whether or not to grant Bail is made by a Bail Authority. A Bail Authority can be:
- A Court; or
- An authorised justice; or
- A Police Officer
How do you get bail?
If you are taken into custody on a Friday night or over the weekend, you may go before a Special Bail Court on a Saturday or Sunday morning before a Registrar.
If the charge is serious you may be refused bail and held until Monday morning to apply for Bail before a Magistrate. If the Magistrate also refuses Bail you will be held on remand.
When an accused is held on remand, they are held in custody at a remand facility such as the Metropolitan Remand and Reception Centre (MRRC) Silverwater, until the trial date.
What is Show Cause Bail?
Show Cause Offences are certain serious offences where the accused is required to “show cause” or argue why their detention is not justified in order to receive Bail (Bail Act 2013 (NSW), Section 16A).
Persons under the age of 18 years old are not required to show cause.
What are Show Cause Offences?
- The offences for which an accused must show cause include:
- An offence punishable by life imprisonment;
- Certain sex offences where the victim is under the age of 16 years;
- Serious personal violence offences;
- Certain indictable and serious indictable offences under the Firearms Act 1996 (NSW)
- Certain indictable and serious indictable offences under the Crimes Act 1900 (NSW) and the Weapons Prohibition Act 1998 (NSW)
- Certain drug offences which involve a commercial quantity of drugs under the Drug Misuse and Trafficking Act 1985 (NSW)
- A serious indictable offence committed by an accused while on Bail or parole, or that is in breach of a supervision order
First Step: Are you able to show cause?
An accused charged with a Show Cause Offence must show cause as to why their detention is not justified. If an accused is unable to show cause, then Bail must be refused.
If an accused is able to show cause as to why their detention is not justified, the Bail Authority will proceed to make an assessment in accordance with the Unacceptable Risk Test before deciding whether or not Bail is granted (Bail Act 2013 (NSW), Division 2).
Second Step: The Unacceptable Risk Test
An accused person’s case is assessed according to the Unacceptable Risk Test. The purpose of this test is to assess whether there is an unacceptable risk if the accused person were to be released on Bail.
In deciding whether or not to grant Bail, the Bail Authority assesses the following concerns. Bail will be refused if there is an unacceptable risk that the accused person might:
1. Fail to appear at proceedings.
The Bail Authority will consider the following:
- Whether the accused person has failed to appear at proceedings in the past
- Whether the accused person has a history of compliance or non-compliance with court orders or Apprehended Violence Orders (AVO)
- The accused person’s background, including any criminal history they may have, community and family ties, and other circumstances
- Whether the accused person has a history of violence
- Special vulnerabilities or needs the accused person may have including whether they are a person of youth, Aboriginal or Torres Strait Islander, or they have a cognitive or mental health impairment
- Whether the accused person has any criminal associations
- Whether the accused person has any associations with a terrorist organization
- Whether the accused person has any associations or affiliation with any people or groups advocating support for terrorist acts or violent extremism
- Whether the accused person has made statements or carried out activities in support of terrorist acts or violent extremism; or
2. Commit a serious offence.
The Bail Authority will consider the following:
- Nature and seriousness of the offence
- Strength of Prosecution’s case
- Likelihood of a custodial sentence being imposed
- The length of time the accused person is likely to spend in custody if Bail is refused,
- If the accused person has been convicted and is appealing the conviction, whether the appeal has a reasonable arguable prospect of success
- The need for the accused person to be at liberty to prepare for court proceedings;
- The need for the accused person to be free for any other lawful reason
- Whether the accused person has breached Bail in the past by committing a serious offence whilst on Bail
- Any warnings Police may have issued to the accused person
- Any non-compliance with Bail acknowledgments or Bail conditions; or
3. Endanger the safety of victims, individuals or the community.
The Bail Authority will consider the following:
- The accused person’s conduct toward any victim of the offence or family member of a victim after the offence
- In the case of a serious offence, the views of the Victim or any family member of the Victim as to whether the accused person is a danger to them, individuals or the community
- Potential Bail conditions that could be imposed to address any concerns; or
4. Interfere with witnesses or evidence
Bail Act 2013 (NSW), Sections 17, 18, 19.
If there are no unacceptable risks or concerns regarding Bail, then the Bail Authority must do one of the following:
- Grant the accused person Bail;
- Release the accused person without Bail; or
- Dispense with Bail
Can Bail Conditions Be Imposed?
If there are some concerns, the Bail Authority can impose bail conditions to alleviate the risks, but only if the conditions are:
- reasonably necessary, and
- proportionate, appropriate, and
- reasonably practicable and
- there is a likelihood that you will comply with the condition
Bail Conditions that can be imposed include:
- Where the accused person is to reside and where the accused person can go
- Where and when the accused person is to report
- A condition that the accused person must surrender their passport
- A condition that surety be provided for the accused
- Character acknowledgment
- That the accused person complies with an AVO
- That the accused person complies with curfews
- That the accused person abstains from alcohol and drugs, and undergoes testing
- That the accused does not associate with certain people or groups
If Bail conditions cannot alleviate the risks, then Bail will be refused.
We are here to help
Our solicitors specialise in Local Court, District Court and Supreme Court Bail Applications and represent clients in courts throughout the Central Coast, the Hunter Region and Sydney. We have the experience and expertise to guide you through the court process from beginning to end to get you the best possible outcome.
The opportunities to apply for Bail are limited. Don't take risks with your freedom. If you or your loved one has been charged and held in custody and you need advice from a criminal lawyer, contact one of our criminal law specialists immediately on 1300 529 444 or fill in our contact form to arrange a free conference with a solicitor today. Contact us now! 24-hour legal advice 7 days a week
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Kevin and Jane are without a doubt 100% there to support you through Your whole ordeal reassuring you all the way My experience from finding Fourtree Lawyers on Google in a fairly unsure position, reading the reviews to the successful outcomes was the only referral I had, believe me when I say you will be happy with their experience in all fields of law which is insurmountable and they will obtain the best favourable outcome in any circumstance. Fourtree Lawyers are there for you to bring things back into perspective...
“Kevin and Jane were my “knights in shining armour.” I can’t thank these two people enough. They gave their everything and most important believed me when I told them my story. I am forever grateful for their professional attitude and for giving 100% to free me from my nightmare. I was able to plead guilty but also most importantly was not forced to lie and compromise my integrity and own personal values and standards. I was very happy with the outcome and the way I was treated. They communicated constantly...
Had the most amazing experience with Fourtree Lawyers kevin vierboom who represented my partner was helpful and understanding and we got a great result better then expected ? jane hogan, I was so blessed to have her by my side. They are an amazing team and i would recommend them to everyone also great value for money. Especially considering i only called the morning of the court case and they were all over it at my bek and call thankyou so much guys im so appreciative for all your help today
I was lucky enough to have Kevin take my case and am truly grateful for the services he and his team provided. From the outset, I was made to feel comfortable and knew from the first time meeting with them that they would go above and beyond to get the best possible outcome and that is exactly what they did. Fourtree Lawyers provides exceptional service with outstanding results and I would recommend Kevin to anyone and everyone who is in need of these services.
Bail application - granted | Enter dwelling with intent to steal / common assault (3 counts) / Demand property with menaces with intent to steal | Wyong Local Court
Our client is a 23-year-old male who lives on the Central Coast and is employed as a farm hand.
Our client, along with several others were accused of entering a residential facility, engaging in a number of serious assaults, issuing death threats to some of the residents and demanding property from them. He and several co-accused were arrested by the Police, taken into custody and refused bail.
His partner contacted us to arrange a “show cause” bail application. This was not a simple task as our client had an extensive criminal record including numerous assaults on police officers, property destruction offences, and several bail breaches.
After extensive submissions in support of the application for bail, our client was granted conditional bail.
Both he and his partner were very relieved that he was released from custody so that he could continue working to support his family and to allow him to prepare his defence case for Court.
13-month Intensive Correction Order | Assault Occasioning Bodily Harm (ABH) (x3), Common Assault & Stalk/Intimidate (withdrawn) | Gosford Local Court | 19/2/2019
Or client is a 26-year-old male who was living with his pregnant de-facto partner at the time of the offence. He was employed as a welder.
Our client had an argument with his de-facto partner which escalated. Our client made numerous admissions to the Police in an Electronically Recorded Interview. As a result, our client was charged with numerous domestic violence-related offences, the maximum penalty for each being 2 years imprisonment and/or a fine of $5,500.
Our client was taken into custody and refused bail. Principal Solicitor Kevin Vierboom made a bail application which was denied initially. After negotiations with the Police, the stalk/intimidate charge was withdrawn and a second bail application was made which was successful.
Solicitor Kevin Vierboom carefully managed the case for almost three months. At sentencing, submissions were made with emphasis on our client’s remorse and prospects for rehabilitation. For the ABH charges, the Magistrate sentenced our client to 13-months imprisonment to be served by way of an Intensive Correction in the community, and 6 months for the common assault.
As a custodial sentence was a very real possibility, our client was relieved to be able to avoid jail and move on with rebuilding his life.