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Bail

An Apprehended Violence Order (AVO) is a court order, typically initiated by police on behalf of a protected person, referred to as the PINOP (Person in Need of Protection), to protect that individual from potential harm.An Apprehended Violence Order (AVO) is a court order, typically initiated by police on behalf of a protected person, referred to as the PINOP (Person in Need of Protection), to protect that individual from potential harm.

In other words, bail is a promise made by an accused person to follow a set of conditions in exchange for their liberty until their criminal matter finalizes.

When it comes to bail, It is important to have an experienced legal team because there are restrictions on one’s ability to make multiple bail applications to the same court.

When do I apply for bail

When you are charged with a criminal offence, the Police may arrest you and take you to a local police station. At the station, the bail sergeant will determine whether you can be released on bail.

If the Police decide to release you on bail, conditions may apply. Alternatively, you may be released unconditionally. In either case, it is important that you attend Court on the scheduled date for your matter to be heard.

If the Police decide to refuse bail, you will be held in police custody and taken to the nearest Court at the earliest opportunity. At Court, a magistrate will then decide whether you will be granted bail or not.

How do I obtain bail?

The first step of any bail application is to determine whether the application is ‘show cause’.

What is show cause

Show cause offences are generally considered more serious under the law, and they place a higher burden on the accused at a bail hearing. In these cases, the accused must “show cause”. That is, convince the Court that their continued detention is not justified.

If you are unable to satisfy the Court that there are sufficient reasons for your release, bail will be refused, regardless of other bail considerations

How do I know if my offence is show cause

Generally, show cause provisions are enlivened if a person is charged with a particularly serious offence, or if the person was on conditional liberity.

However, there are a number of further circumstances that enliven the show cause provisions.

An experienced solicitor will provide significant assistance in navigating the very compelx Bail Act.

Can I Show cause?

In assessing whether your continued detention is justified in show cause matters, the Court will consider a range of factors, including but not limited to:

The strength of the Police evidence against you.
Any medical issues you or a dependent may have.
Your criminal history
The anticipated time you would spend in custody if bail is refused before your matter is finalised
Whether being granted bail is necessary for you to adequately prepare your defence
Any other relevant circumstances supporting your release into the community

An experienced lawyer can effectively present these factors to the Court and advocate strongly on your behalf, with the goal of demonstrating that continued detention is not warranted.

Unacceptable Risk

If you have satisfied the Court that your detention is not justified in a show cause matter or if you are not charged with a show cause offence you must still demonstrate that you do not pose an unacceptable risk if released on bail.

The Court will consider whether there is a risk that if released, you may:

Fail to appear at court;
Commit a serious offence while on bail;
Endanger the safety of victims, individuals, or the community; or
Interfere with witnesses or evidence.

Importrantly, an “unacceptable risk” is one that cannot be adequately managed through the imposition of bail conditions. This means that even if a risk is identified, you may still be granted bail if the Court is satisfied that appropriate conditions can effectively mitigate that risk through bail conditions.

Relevant Factors for Assessing Risk

The Bail Act outlines a number of factors that must be considered by the court in determining whether an unacceptable risk exists. These factors include, but are not limited to:

Your background, including your criminal history and ties to the community
The nature and seriousness of the alleged offence
Whether you have a history of violent behaviour
Whether you have previously committed offences while on bail
Whether you have a history of non-compliance with court orders, such as bail conditions, parole, Apprehended Violence Orders (AVOs), Intensive Corrections Orders or good behaviour bonds.
Whether any bail conditions can be imposed to sufficiently mitigate identified risks
The attitude of the victim.
The anticipated time you would spend in custody if bail is refused before your matter is finalised
Any special vulnerability of the accused through youth, being an Aboriginal or Torres Strait Islander, or having mental health impairments

Any special vulnerability of the accused through youth, being an Aboriginal or Torres Strait Islander, or having mental health impairments

What Bail Conditions will I have?

As previously mentioned, the Court will only grant bail if it is satisfied that any risks you pose can be reasonably managed through bail conditions. Therefore, it is crucial to propose strong and relevant bail conditions that directly address the Court’s concerns. The specific conditions will vary from case to case depending upon the particular risk that is identified. However, common bail conditions include, but are not limited to:

Residential Conditions: You must reside at a particular address, which could be your family home or a rehabilitation facility.
Reporting: You are required to regularly report to your local police station, such as several times per week.
Curfew: You must remain at home during specified hours, for example, from 10:00 PM to 6:00 AM.
House Arrest: You may not leave your home except for emergencies, medical appointments, legal proceedings, or other approved reasons.
Surety:, where yourself or an acceptable person will lodge an amount of money in court to secure your release.
Mobile Phone Restriction: You may be limited to possessing only one mobile phone, preventing contact through multiple devices
Non Association: where you will be precluded from communicating with certain individuals.
Geographic exclusions: where you will be prohibited from entering certain suburbs.

Local Court Decision

Following the Court’s assessment of both the show cause and unacceptable risk tests, one of the following outcomes will be determined:

Grant unconditional bail – You are released without any specific conditions.
Grant conditional bail – You are released with conditions designed to manage any identified risks (e.g. reporting to police, surrendering your passport).
Release without bail – You are released, and the Court does not impose any bail requirements.
Dispense with bail – The Court decides that bail is unnecessary, and your release is not subject to any bail considerations.
Refuse your bail application- You remain incarcerated until the matter is finalised.

The Court refused to release me, can I make a further application?

Generally speaking, a person cannot make multiple release applications to the same court unless one of the following circumstances exist:

The person was not represented at the time of the initial bail application, or Material information relevant to the grant of bail was not available at the time of the initial bail application, and is now available, or
There has been a change of relevant circumstances to the grant of bail since the last bail application.

Due to the restrictions with multiple release application, it is crucial to get it right the first time. Our experienced lawyers that is well versed in the bail act will be able to put forth the best possible case for a grant of bail.

I have been refused bail by the local court, what do I do If you have been refused bail by the Local Court, you have several options:

Make a second bail application in the Local Court, provided you meet one of the permitted grounds, such as not having legal representation during your initial application, a change in circumstances, or the discovery of new evidence.
Apply for bail in the Supreme Court of NSW, which has the authority to reconsider your detention.
Remain in custody until your case is finalised.

Supreme Court of NSW

If you have been refused bail in the Local Court, you can apply to the Supreme Court of NSW for release. However, this process is significantly more complex and involves a high level of preparation and legal precision.

To have your matter heard, you must file and serve several documents, including:

A Supreme Court bail application form
Written submissions outlining the legal basis for your application and the factors that you rely upon to secure your release.
Affidavit evidence, such as statements from individuals you propose to live with or offering surety or providing character references
A document proposing specific bail conditions to mitigate any risks to an acceptable level.

These documents must also be served on the Director of Public Prosecutions (DPP).
Once the required documents have been filed and served, the Supreme Court will list the matter for hearing and make a decision on whether to grant bail.

The process of obtaining bail before the Supreme Court is very technical and reaquires a high level of legal skills. The restrictions on multiple release applications to the same court applies to supreme court release applications, therefore, it is imperative that you have an experienced legal team in your corner to ensure that you are in the best possible position for bail.

The team at Krayem and Co Lawyers regularly successfully appear in bail applications for individuals charged with complex criminal matters including but not limited to large quantities of drugs, murders, fraud, and serious domestic violence offences.

What If I breach my conditions?

If you breach any of your bail conditions, the police have several options depending on the circumstances and the nature of the breach, including:

Taking no action
Issuing a warning
Issuing a court attendance notice
Arresting you and bringing you before the court

If you are arrested and brought to court, the police may apply to have your bail revoked, which means your release on bail can be withdrawn.

If your bail is revoked, you will need to make a fresh bail application if you wish to be released again.

How to Respond if You Have Breached Bail Conditions

1. Seek Legal Advice Immediately:
Contact an experienced criminal lawyer as soon as possible. They can advise you on the seriousness of the breach and the best course of action.

2. Explain Your Breach:
Sometimes breaches happen due to misunderstandings or unavoidable circumstances. Your lawyer can present these explanations to the court to mitigate the consequences.

3. Comply with Bail Conditions Going Forward:
Demonstrating that you are now fully compliant and committed to following bail conditions may influence the court’s decision to grant bail again.

4. Prepare for Bail Revocation Hearing:
Your lawyer can assist you in preparing submissions and evidence to convince the court that your detention is not justified and that bail should be reinstated.

5. Attend All Court Dates:
It is critical to attend all court appearances to avoid further penalties or bail being revoked automatically.

Will time Spent bail refused be considered when I am sentenced?

Yes, any time spent on remand will be considered by the Sentencing judge in determining your ultimate sentence. Most commonly, courts tend to backdate the commencement date of your sentence to the date of your initial bail refusal.