Bail Presumptions in NSW
What are ‘presumptions’ about bail?
Your chances of getting bail depend partly on the type of offence/s
you are charged with. For certain minor offences, there is a ‘right
to bail’ (Bail
Act
(s8); which means that you must be released on bail if you are
charged only with those offences except in very
limited circumstances eg you previously breached bail conditions
(s8(2)(a)(i)), or you require physical care or protection (s8(a)(ii)).
On the other hand, for
certain drug offences there is a presumption against bail (s8A),
which means that you are not entitled to bail unless the
police and/or the Court are convinced (often by a
solicitor through a Court application) that, despite the
seriousness of the offence, you should nevertheless be granted bail.
For many other
offences, there is no presumption either way; leaving the police or
the Court to decide whether, on the ‘balance of probabilities’, bail
should be granted (ss9(1),
9A). Such offences are sometimes said to have a neutral
presumption.
However, for most
offences the Bail Act presumes that bail will be granted (s9(2));
in other words, it says that bail must be granted unless the
police and the Court are convinced, after considering the matters in
section 32 (see
previous topic), that bail should be refused. For such offences,
it is said that there is a presumption in favour of bail.
Before reading on,
check your police ‘fact
sheets’ to see which particular offences relate to your case.
Offences where there
is a ‘right to bail’
There is a
right to bail for all offences under the
Summary Offences Act 1988 and all offences that are not
punishable by a prison sentence, except those involving the failure
to pay fines (s8(1)).
Offences where there
is a ‘presumption’ ‘against’ bail
There is a presumption against bail for certain drug-related
offences under the
Drug Misuse and Trafficking Act 1985 (sections
23(2),
24(2),
25(2),
26,
27 and
28) and the
Customs Act 1901 (Cth) (sections
231(1),
233A and
233B).
Offences where there
is a ‘neutral’ presumption
There is a neutral
presumption in respect of:
· Crimes
Act sections
18,
26,
27,
28,
29,
30,
31,
33,
61J,
61JA,
61K,
66A,
66B,
78H, 85A, 90A,
95,
96,
97 and
98;
· Drug
Misuse and Trafficking Act sections
23(1),
24(1),
25(1) and
25A but only if the offence involves at least twice the
indictable quantity of drugs; see
Bail Act s9(1)(d)
&
(d1);
· Firearms
Act 1996
s7;
· offences
involving domestic violence and/or breaches of apprehended violence
orders eg
Crimes Act
; and
· failing
to appear in Court;
Bail Act
s51.
Offences where there
is a presumption ‘in favour’ of bail
There is a presumption in favour of bail for all other offences.
However, recent amendments to the
Bail Act remove that presumption for persons judged to be
‘repeat offenders’, including persons who are:
-
already on bail, parole and/or a ‘good
behaviour bond’ ; and/or;
-
still under periodic detention or a
community service order.
In such cases, there
is a neutral presumption (s9B, commenced 1 July 2002).
How can
a solicitor help me?
The laws relating to bail are complex and constantly changing. If
you are arrested or called for a police interview, you should
contact a solicitor (lawyer) who is familiar with the criminal
law. They can:
·
advise you of your
rights;
·
explain the charges
against you;
·
explain your
alternatives;
·
make a bail application
on your behalf;
·
seek to have bail
conditions varied (if you cannot meet them); and
·
represent you at your
Court hearing.
For personalised advice and/or Court representation:
Contact us now
For more information, see:
http://www.lawlink.nsw.gov.au/lac/lac.nsf/print/bail_brochure
http://lawsociety.com.au/legalhelp/answers/arrest/print_index.html
http://www.lawlink.nsw.gov.au/sc/sc.nsf/pages/bail
http://www.lawlink.nsw.gov.au/lc.nsf/pages/info_sureties | 
