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Bail in NSW
What is Bail?
The rules relating to bail in NSW are contained in the Bail Act
1978 and amending legislation. Bail is an agreement by you to attend
Court at a given time. In practice, getting bail means that you are
released from custody (ie from the police station or from gaol) on
certain conditions, including the condition that you will appear in
Court on the next Court date (sections 7, 34).
How do I get bail?
After you are charged by police, a decision on whether and/or on
what conditions you are granted bail must be made by the sergeant
(or another ‘proper officer’) ‘as soon as reasonably practicable’
(s18). If the officer refuses bail, he/she must arrange for you to
be brought before a Court (usually the Local Court) ‘as soon as
practicable’ (usually the next morning) (s20). At that time, you (or
a solicitor on your behalf) can make a formal bail application,
which involves making ‘submissions’ and/or handing-up supporting
documents. The Magistrate will then decide whether to grant bail
and, if so, on what conditions.
What factors determine whether or not I get bail?
In determining bail, certain matters must be taken into account.
Those matters are outlined in section 32 of the Bail Act, and can be
grouped into three broad categories:
1. The likelihood that you will appear in Court on the next occasion
(s32(1)(a));
2. Your interests (s32(b)); and
3. The protection of any victims of the crime (s32(b1)) and of the
community generally (s32(c)).
Another very important factor is the type of offence/s you are
charged with. For some offences, there is a ‘right to bail’. For
others, there are rules called ‘presumptions’, which are rules that
control whether bail will normally be granted or refused. The type
of ‘presumption’ will determine which party (the defence (you) or
the prosecution) has to positively convince the Magistrate of their
case (ie for or against bail). For example, if there is a
presumption in favour of bail, the Magistrate must grant bail unless
he/she is convinced that bail should not be granted in the
particular case. To know more about presumptions and what they mean
for you click here.
What conditions can be placed upon my bail?
Apart from having to attend Court (s34), a wide range of
conditions may be placed upon your bail, including:
• that you must do certain things such as report to a particular
place (eg your local police station) on a regular basis (eg daily,
twice per week, weekly etc) and/or live at a specific place (eg your
parents’ home) and/or not leave your home past a certain time each
day (sometimes called a ‘curfew’) etc; s36(2)(a);
• that you must not approach certain persons (eg the victims of an
assault), and/or associate with certain persons (eg your alleged
‘partners in crime’) and/or attend or approach certain places (eg
areas where you are suspected of receiving or supplying drugs);s36B;
• that you or an ‘acceptable person’ must lodge something of value
or deposit an amount of cash (called a ‘security’) with the Court,
and agree to forfeit an amount of money if you fail to appear in
Court; s36(e), (f), (g), (h);
• that you or an ‘acceptable person’ agree, without a ‘security’, to
forfeit an amount of money if you fail to appear in Court; s36(c) &
(d);
• that you attend a drug and/or alcohol program; s36A; and
• that you surrender your passport; s36(2)(i).
Who is an ‘acceptable person’?
An ‘acceptable person’ is someone who has known you for some
time (usually at least several months) and who has no criminal
convictions, outstanding criminal charges or bankruptcy proceedings
against him/her. That person is required to complete an acceptable
person information form to be eligible as your ‘bail guarantor’.
What is a ‘bail guarantor’?
A ‘bail guarantor’ (also known as a ‘surety’) is an ‘acceptable
person’ who agrees to lodge or deposit a ‘security’ and/or to
forfeit an amount of money if you fail to appear in Court.
What if I don’t comply with my bail conditions?
If, while on bail, you breach any of your bail conditions
without a reasonable excuse, you can be arrested by police and taken
into custody. You will then be brought before a Court and your bail
may be revoked (cancelled). If that occurs, you will not normally
get bail again.
If you are on bail and you fail to appear in Court, the presiding
Magistrate, Judge or Justice can (a) issue a ‘bench warrant’ (for
your arrest), and (b) order that any amounts that you or your
‘surety’ agreed to forfeit are forfeited. The Court will notify you
by post of any such order. You have 28 days to lodge an objection to
the order. If you do so, the Court can (a) revoke the order, (b)
vary the order (possibly reducing the amount forfeited) or (c)
confirm the order. If the order is not revoked and there are unpaid
amounts, the State Debt Recovery Office may take action against you
and/or your ‘surety’.
What if I can’t comply with my bail conditions?
There can be many reasons why you cannot comply with a bail
condition, whether on a particular occasion or at all.
a) I can’t comply on a particular occasion only
You might, on occasion, be so sick that you are unable to report to
police and/or to attend your drug or alcohol program. Similarly, you
might suffer a mishap or accident and be unable to get home in time
for your ‘curfew’. In such cases, you must immediately contact the
police station where you are expected to report (or the police in
charge of your matter if you are not required to report) and inform
them of your circumstances. You must also inform your drug and/or
alcohol program coordinator (if applicable). If you are sick, you
must obtain a medical certificate and present it to police as soon
as possible. Note, however, that a general medical certificate
and/or a good explanation may not always get you off the hook. You
may need to show that the illness was so serious, or the problem was
so unavoidable, that you could not reasonably be expected to meet
your bail conditions on that day.
b) I can’t comply at all
There may be a bail condition that you can never meet eg where an
‘acceptable person’ promises to lodge a ‘security’ but fails to do
so, and you cannot get anyone else to lodge one. Another example is
where you are required to live with your parents at a particular
place, and your parents move to another place. In such cases, you
(or a solicitor on your behalf) can arrange with the Court Registry
to have your matter brought before the Court for a ‘bail variation’
seeking to change one or more of your bail conditions.
Where you have a solicitor, he/she will often contact the opposing
legal officer (eg a police sergeant or a DPP solicitor) to see if
that officer will (a) ‘consent’ (agree) to the change/s, and/or (b)
agree not to oppose your bail generally (note – the opposing officer
may oppose your release on bail altogether even if you are already
out of custody). Your solicitor can then (i) advise you of the
chances of getting your bail varied, (ii) advise you of any risks
(especially if bail is likely to be opposed generally), and (iii)
arrange and conduct the application in Court.
What if I’m refused bail?
In the Local and District Courts, you can make as many bail
applications as you like (s22). So don’t despair if police refuse
bail or if your first bail application in the Local Court fails. A
bail application that is carefully prepared by a solicitor who is
familiar with the Bail Act and experienced in making bail
applications will give you the best chance of getting bail. If you
are still unsuccessful or you are unable to meet your bail
conditions, you are entitled to apply for Supreme Court bail.
Supreme Court Bail
Unlike the Local and District Courts, the Supreme Court will
only consider your bail application once (except on rare occasions
when the Court is convinced that there are fresh facts or
circumstances that justify another application) (s22A). So it is
very important that you are properly prepared for your Supreme Court
bail application. If the date of your application is approaching and
you are not prepared, you (or your solicitor) should withdraw the
application and re-apply when you are ready.
Preparing for your Supreme Court bail application
You should, as soon as possible, arrange to have at your bail
hearing:
• persons who have known you for some time and who know you are of
good character, especially persons who hold a ‘respectable’ position
in the community (eg your local priest, professional persons
(doctors, accountants etc) business leaders/persons etc), your
former employer/s, person/s who you intend to live with if released
on bail, ‘acceptable persons’ who are willing to lodge property or
deposit money as security for your bail etc; and
• any Certificates you have received for courses completed while in
custody (eg TAFE, drug & alcohol, anger management etc);
• any other documents or things that you think might help convince
the Court that you are a ‘good citizen’ and will attend Court if
released on bail.
It may help your case if you show that you are willing to attend a
rehabilitation program if released. To do this, you should contact a
rehabilitation centre before applying for bail. A person from the
centre might then have enough time to assess you. You will need to
obtain and bring to the Court a letter from the centre outlining the
program and stating that the centre will accept you. You should also
ask the centre if someone can come to Court to give evidence.
CLICK HERE FOR SUPREME COURT BAIL APPLICATION FORM
How can I get my bail money/property back?
After your matter is finalised, you (and your ‘bail guarantor’)
are entitled to your ‘security’, provided of course that you
appeared in Court on all occasions.
Getting your money back
Your bail money will be refunded as a cheque, even if it was
deposited as cash. To get your cheque, you must:
1. Go to the Registry of the Court where your case was finalised,
obtain your ‘bail refund letter’ and send or fax that letter (or
arrange for the Court to send or fax it) to the Supreme Court Bails
Matters Counter (4th Floor, Law Courts Building, Queens Square,
Sydney; fax 9230 8060); then
2. Go to the Supreme Court Bails Matters Counter with (a) the
original receipt for your bail, and (b) two forms of identification
with your signature. If you would rather get your cheque from your
nearest Local Court, you must write to the Bails Clerk, GPO Box 3,
Sydney 2000, attaching a copy of your ‘bail refund letter’. In that
case, you will need to wait 7-10 days for the refund, and you will
still have to show the original bail receipt and identification.
Getting your property back
The Court officially records its legal interest in any property
lodged (eg the title deed for a house) as security for bail. That
record, called a ‘caveat’, prevents you from dealing with the
property (eg selling the house). In order to get back your property
and remove the caveat, you must:
1. Go to the Registry of the Court where your case was finalised,
obtain your ‘bail refund letter’ and send or fax that letter (or
arrange for the Court to send or fax it) to the Supreme Court Bails
Matters Counter (4th Floor, Law Courts Building, Queens Square,
Sydney; fax 9230 8060); then
2. Complete a ‘Withdrawal of Caveat’ form, which are available from
legal stationery shops and the Supreme Court Bails Matters Counter;
then
3. Go to the Supreme Court Bails Matters Counter with (a) your
completed ‘Withdrawal of Caveat’ form, and (b) two forms of
identification with your signature. The Deputy Registrar will sign
the ‘Withdrawal of Caveat’ form and return it together with your
bail documents; then
4. Take all documents to the ‘Land and Property Information’
building (formerly the ‘Land Titles Office’) Queens Square, Sydney
(across Macquarie Street) to have the ‘caveat’ removed.
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 |
