Bail Matters

(1)   What is bail?

Bail is defined in Section 7 of the Bail Act 2013 NSW as;

(1)   Bail is authority to be at liberty for an offence.

Note. An offence includes an alleged offence.

(2)   Bail can be granted under this Act to any person accused of an offence. 

(3)   A person who, because of bail, is entitled to be at liberty for an offence is entitled (if in custody) to be released from custody.

Note. Limitations to the entitlement to be at liberty are specified in section 14.

 

Section 14 of the Bail Act 2013 identifies limitations on entitlement to be at liberty, as:

(1)   Bail does not entitle a person to be at liberty until—

a.     the person signs, and gives to the bail authority, a copy of the bail acknowledgment for the decision to grant bail, and 

b.     all pre-release requirements of bail conditions have been complied with.

Note. Pre-release requirements are dealt with in Part 3. For example, a bail condition may require an accused person, before being released on bail, to surrender his or her passport. Bail acknowledgments are dealt with in Part 4.

(2)   Bail does not entitle a person to be at liberty on those occasions on which the person is required to appear before a court under his or her bail acknowledgment.

(3)   Bail does not entitle a person to be at liberty while the person is in custody for some other offence, or reason, because of which the person is not entitled to be at liberty.

Note. For example, a person may be in custody for 2 offences. If bail is granted for one offence only, the person is not entitled to be released.

 

Under Section 85 of the Bail Act 2013, bail can be revoked by court order when bail security is deposited or otherwise secured in assuring bail compliance imposed upon an accused person subject to bail conditions / orders.

This court order to revoke can only be granted by a presiding magistrate or judge after written notice has been served and objection is made within 28 days from service of such notice. The objection must demonstrate one of the following, bail is intact and no breach has occurred, that no action be taken due to subjective factors and or to arrange a replacement security.

(2)   Who can get bail? What is the legal test for Bail to be granted?

Persons accused of criminal offences / actions brought about by a prosecuting authority where the prosecuting authority has refused the release of the accused and brought the matter before court.

The test for bail to be granted for an accused is a two stage process; first is the Show Cause Test and second the Unacceptable Risk Test. An application for release is made before court on the balance of probabilities.

Section 16 of the Bail Act 2013 defines these tests and illustrates flow charts identifying how the court determines bail, it states:

(3)   In the flow charts—

conditional release means a decision to grant bail with the imposition of bail conditions.

 unconditional release means a decision—

(a)   to release a person without bail, or

(b)   to dispense with bail, or

(c)    to grant bail without the imposition of bail conditions.

Flow Chart 1 Show cause requirement

 

Flow Chart 2 Unacceptable risk test

Part 3, Division 1A, Section 16A of the Bail Act 2013 defines the Show Cause requirement for certain serious offences as:

(1)   A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

Note: “why… detention is not justified” in effect shifts the onus of proof on the accused.

(2)   If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test—all offences).

(3)   This section does not apply if the accused person was under the age of 18 years at the time of the offence.

Section 16B of the Bail Act 2013 identifies the offences to which the show cause requirement applies.

Part 3, Division 2, Section 17 of the Bail Act 2013 state the assessment of bail concerns for Step 2 Unacceptable Risk Test as:

(1)   A bail authority must, before making a bail decision, assess any bail concerns.

(2)   For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will— 

(a)   fail to appear at any proceedings for the offence, or

(b)   commit a serious offence, or

(c)    endanger the safety of victims, individuals or the community, or

(d)   interfere with witnesses or evidence.

(3)   If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision.

 (4)   This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement).

 

Further to the above the court is to consider matter as part of its assessment in making a determination with respect to the unacceptable risk test. Section 18 of the Bail Act 2013 states those matters as:

(1)   A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division—

(a)   the accused person’s background, including criminal history, circumstances and community ties,

(b)   the nature and seriousness of the offence,

(c)    the strength of the prosecution case,

(d)   whether the accused person has a history of violence,

(e)    whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction),

(f)     whether the accused person has a history of compliance or non-compliance with any of the following—

i.     bail acknowledgments,

ii.     bail conditions,

iii.     apprehended violence orders,

iv.     parole orders,

v.     home detention orders, good behaviour bonds or community service orders,

vi.     intensive correction orders,

vii.     community correction orders,

viii.     conditional release orders,

ix.     non-association and place restriction orders,

x.     supervision orders,

(f1)     if the bail authority is making the assessment of bail concerns because the accused person has failed or was about to fail to comply with a bail acknowledgment or a bail condition, any warnings issued to the accused person by police officers or bail authorities regarding non-compliance with bail acknowledgments or bail conditions,

(g)   whether the accused person has any criminal associations,

(h)   the length of time the accused person is likely to spend in custody if bail is refused,

(i)     the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(i1)     if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,

(j)     if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,

(k)    any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,

(l)     the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,

(m)  the need for the accused person to be free for any other lawful reason, 

(n)   the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence, 

(o)   in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,

(p)   the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A,

(q)   whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code),

(r)    whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism,

(s)    whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

 

(2)   The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered—

(a)   whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, 

(b)   the likely effect of the offence on any victim and on the community generally,

(c)    the number of offences likely to be committed or for which the person has been granted bail or released on parole.

In consideration of all of the above a determination for bail will be granted or refused. I note that evidence (documentation, material or oral testimony) is required to be put before the court detailing matters identified above that the accused seeks to rely upon in their application for bail / release.

(3)   How long am I subject to bail and what happens if I am bail refused?

If you are bail refused then you are required to remain in custody until the conclusion of your criminal proceedings or until bail is granted.

Depending on the charge and the jurisdiction which your matter will be finalised in, your remand could be anywhere between four weeks and one and half years.

Section 6 of the Bail Act 2013 defines conclusions of proceedings as:

(1)   Proceedings for an offence conclude when a court finally disposes of the proceedings concerned.

(2)   If a court convicts an accused person of an offence, and a sentence is to be imposed, proceedings for the offence do not conclude until the sentence has been imposed.

(3)   The committal of a person for trial or sentence is not a conclusion of proceedings for an offence.

(4)   If a person’s conviction or sentence for an offence is stayed on or before the conclusion of proceedings for an offence, the proceedings do not conclude while the stay is in force. 

(5)   The regulations may make further provision for the time at which proceedings for an offence are to be regarded as concluded and this section has effect subject to the regulations.

 

(4)   How many bail applications can I make?

In the ordinary course you are only entitled to apply once before the Local Court for bail / release failing that application you are able to apply for bail / release before the Supreme Court of New South Wales.

If both your Local Court and Supreme Court bail / release applications are refused you are only able to make another application for bail pursuant to Section 74 of the Bail Act 2013.

Section 74 of the Bail Act 2013 states that multiple release or detention applications to same court is not permitted unless there are ground for a further application:

(1)  A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application.

(2)  A court that grants or dispenses with bail for an offence, or that affirms a decision to grant or dispense with bail for an offence, after hearing a detention application is to refuse to hear another detention application made by the prosecution for the same offence, unless there are grounds for a further detention application.

(3)  For the purposes of this section, the grounds for a further release application are—

a.     the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

b.     material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

c.     circumstances relevant to the grant of bail have changed since the previous application was made, or

d.     the person is a child and the previous application was made on a first appearance for the offence.

(4)  For the purposes of this section, the grounds for a further detention application are—

a.     material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

b.     circumstances relevant to the grant of bail have changed since the previous application was made.

(5)  In this section, court does not include an authorised justice.

(5)   How much is bail?

Generally speaking, legal professional fees / costs for a bail / release application it is dependent on the offences charged, subject factors of the accused applying for bail / release and the jurisdiction the application is being made before.

If you are not eligible for Legal Aid, a private criminal defence lawyer / solicitor may charge between $1,650.00 to $4,500.00 per day, for a bail application before either the Local Court of New South Wales or the Supreme Court of New South Wales.

If your bail / release application is before the Supreme Court of New South Wales you may need to consider instructing a Barrister (also known and Counsel) which will generally cost between $2,200.00 to $16,500.00 per day. The reason for such a large variance is due to choice of barrister instructed, for example, instructing Senior Counsel or Queen’s Counsel will ordinarily cost and accused person $5,500.00 and above. Junior Counsel would ordinary cost $5,500.00 and below. This is only a guide each barrister may set their own rates tailored to suit each matter and if they remain instructed in the proceedings.

(6)   How can I pay for bail?

Legal fees for bail applications are generally paid by transfer into the solicitor’s trust account prior to the bail application being heard and determined. Some lawyers will accept money paid on the day of the application or shortly after the application is heard and determined.

In other circumstances payment plans can be agreed upon between lawyer and their client or the individual, friend or family member assisting the accused retain a lawyer for their bail/ release application. Another important factor in determining costs and how payments are made is whether the accused person seek to also retain the lawyer conducting their bail application in also conducting their entire criminal proceedings.

(7)   Do I need a lawyer to apply for bail?

No, you do not “need” a lawyer for apply for bail / release. It can be made by yourself being a self-represented individual. This is highly prejudicial and NOT recommended.

As identified above bail is an extremely complex application where matters to be determine require thorough preparation and legal expertise. Preparing your defence case on remand in custody and behind bars adds additional difficulty when disputing the criminal charges alleged by the prosecution.

It also impact on your ability to financial support yourself with a risk of losing employment and not meeting financial responsibilities that you may have. There is further added risks being bail refused if you are suffering from various medical or mental illnesses that require treatment.

The question is not “Do I need a lawyer to apply for bail?” but “What is my liberty worth and what effect will being bail refused and remanded in custody have on my life during the course of my criminal proceedings?”

(8)   Do I need bail?

This question is unique in that “a need for bail” is subjective and determinative on the person accused and the offence charged.

You may find yourself refused bail by police and charged for an offence that will ultimately not result with you not being sent to jail on sentence even if you are found guilty. In this regard, yes, bail is “needed” otherwise you will be serving time in prison unnecessarily. Courts may not always pick up on this point and there is a fine line assuming what the outcome of your matter will be, only experienced lawyers as experts will advise appropriately on this point.

Under Section 21 of the Bail Act 2013 special rules for offences for which there is a right to release, include:

(1)  The following decisions are the only bail decisions that can be made for an offence for which there is a right to release—

(a)           a decision to release the person without bail,

(b)           a decision to dispense with bail,

(c)            a decision to grant bail to the person (with or without the imposition of bail conditions).

(2)  There is a right to release for the following offences—

(a)           a fine-only offence,

(b)           an offence under the Summary Offences Act 1988, other than an excluded offence,

(c)            an offence that is being dealt with by conference under Part 5 of the Young Offenders Act 1997.

(3)  Each of the following offences under the Summary Offences Act 1988 is an excluded offence—

(a) an offence under section 5 (obscene exposure) if the person has previously been convicted of an offence under that section,

(b) an offence under section 11A (violent disorder) if the person has previously been convicted of an offence under that section or of a personal violence offence,

(c) an offence under section 11B, 11C or 11E (offences relating to knives and offensive implements) if the person has previously been convicted of an offence under any of those sections or of a personal violence offence,

(d) an offence under section 11FA (custody or use of laser pointer in public place),

(e) an offence under section 11G (loitering by convicted child sexual offenders near premises frequented by children).

(4)  An offence is not an offence for which there is a right to release if the accused person has previously failed to comply with a bail acknowledgment, or a bail condition, of a bail decision for the offence.

(5)  Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision for an offence for which there is a right to release.

 

Also you have various financial, family or medical obligations that you are required to attend or complete. In this regard, yes, bail may be needed.

On the other hand if you are accused of a serious offence with the prosecution case being overwhelmingly strong, it may be that bail is not applied for at all due to the inevitable result of your matter concluding on a plea of guilty with you being sent to jail.

In this example it may be that you start serving your time on arrest being police bail refused, of which the time you serve in custody while your proceedings progress in their ordinary course will be taken into account as a penalty at the conclusion of your proceedings when being sentenced by the court. Even if this is the case you may need bail to finalise your affairs prior to going into custody and therefore have a “need” for bail to be granted.

Generally speaking in determining your “need” for bail, you should consult a lawyer who will balance the answer against the seriousness of the offence charged and the two bail tests.

(9)  Who decides who gets bail?

On arrest you are conveyed to the police station and into the care of the Custody Sergeant while the Officer in Charge processes you. In matters not related to Show Cause Offences the Custody Sergeant will make a determination whether to grant police bail based upon your criminal history, the seriousness of the offences charged and documentation provided to them from the Officer in Charge of your criminal matter.

In court the judicial officer (Magistrate or Judge) presiding over the bail application will decide whether bail is granted or refused on the balance of probabilities and in accordance with the two the strength of the bail / release application before them.

 

(10) What are some common bail conditions?

Under Section 20A of the Bail Act 2013 the imposition of bail conditions are:

(1)  Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns.

(2)  A bail authority may impose a bail condition only if the bail authority is satisfied that— 

(a) the bail condition is reasonably necessary to address a bail concern, and

(b) he bail condition is reasonable and proportionate to the offence for which bail is granted, and

(c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and

(d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and

(e) it is reasonably practicable for the accused person to comply with the bail condition, and

(f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

(3) This section does not limit a power of a court to impose enforcement conditions.

Note. Enforcement conditions are imposed for the purpose of monitoring or enforcing compliance with other bail conditions. Section 30 provides for this type of bail condition.

 

Sections 25-30 of the Bail Act 2013 provide further detail with respect to the above. See below:

 

Section 25 bail conditions can impose conduct requirements

(1) Bail conditions can impose conduct requirements on an accused person.

(2) A conduct requirement is a requirement that the accused person do or refrain from doing anything.

 (3) A conduct requirement cannot require an accused person to provide security for compliance with a bail acknowledgment. Such a requirement (if any) is a security requirement and is subject to the rules for imposing security requirements.

 Section 26 bail conditions can require security to be provided

(1)   A bail condition can require security to be provided for compliance with a bail acknowledgment.

 (2)   For that purpose, a bail condition can include the following requirements—

(a)   that the accused person, or one or more other acceptable persons, or both, enter into an agreement under which the person agrees to forfeit a specified amount of money if the person granted bail fails to appear before a court in accordance with his or her bail acknowledgment,

(b)   that a specified amount of money be deposited with the bail authority (and agreed to be forfeited under such an agreement if the person granted bail fails to appear before a court in accordance with his or her bail acknowledgment),

(c)    that acceptable security be deposited with the bail authority as security for the payment of the money agreed to be forfeited under such an agreement.

(3)   A requirement of a kind referred to in this section is a security requirement.

(4)   A decision as to which person or persons, or class or description of persons, is an acceptable person and what security is acceptable security for the purposes of a security requirement is to be made by—

(a)   the bail authority imposing the bail condition, or

(b)   the officer or court to whom the bail acknowledgment is given (if no decision has been made under paragraph (a)).

 (5)           A security requirement can be imposed only for the purpose of addressing a bail concern that the accused person will fail to appear at any proceedings for the offence.

 (6)           A bail authority is not to impose a security requirement unless of the opinion that the purpose for which the security requirement is imposed is not likely to be achieved by imposing one or more conduct requirements.

 (7)           The regulations may make further provision for security requirements and bail security agreements.

Note. Part 9 contains further provisions about security requirements.

Section 27, bail conditions can require character acknowledgments

(1)    Bail conditions can require one or more character acknowledgments to be provided.

(2)    A character acknowledgment is an acknowledgment, given by an acceptable person, other than the accused person, to the effect that he or she is acquainted with the accused person and that he or she regards the accused person as a responsible person who is likely to comply with his or her bail acknowledgment.

(3)    A decision as to which person or persons, or class or description of persons, is an acceptable person for a character acknowledgment is to be made by—

(a)                the bail authority imposing the bail condition, or

(b)                the officer or court to whom the bail acknowledgment is given (if no decision has been made under paragraph (a)).

(4)    A bail authority is not to require a character acknowledgment unless of the opinion that the purpose for which the acknowledgment is required is not likely to be achieved by imposing one or more conduct requirements.

(5)    The regulations may make further provision for character acknowledgments and requirements to provide character acknowledgments.

Section 28, bail condition can impose accommodation requirements

(1)   A bail condition imposed by a court or authorised justice on the grant of bail can require that suitable arrangements be made for the accommodation of the accused person before he or she is released on bail.

(2)   A requirement of a kind referred to in this section is an accommodation requirement.

 (3)   An accommodation requirement can be imposed only—

(a)  if the accused person is a child, or

(a1)  for the purpose of enabling the accused person to be admitted to a residential rehabilitation facility for treatment on the person’s release on bail, or

(b)  in the circumstances authorised by the regulations.

(4)   The court responsible for hearing bail proceedings must ensure that, if an accommodation requirement is imposed in respect of a child, the matter is re-listed for further hearing at least every 2 days until the accommodation requirement is complied with.

(5)   The court may direct any officer of a Division of the Government Service to provide information about the action being taken to secure suitable arrangements for accommodation of an accused person.

(6)   The regulations may make further provision for accommodation requirements.

Note. The court can also impose the following types of bail condition (conduct requirements)—

(a)   requiring the accused person to reside at the relevant accommodation while at liberty on bail,

(b)   if the accommodation requirement is for the purpose of enabling the accused person to be admitted to a residential rehabilitation facility, requiring the accused person to be accompanied by a person specified by the court to that facility on release on bail.

Section 29, limitation on power to impose pre-release requirements

(1)   The following requirements (and no other requirements) can be imposed by a bail authority as pre-release requirements—

(a)  a conduct requirement that requires the accused person to surrender his or her passport,

(b)  a security requirement,

(c)   a requirement that one or more character acknowledgments be provided,

(d)  an accommodation requirement.

(2)   A requirement of a bail condition is a pre-release requirement if the bail condition specifies that the condition must be complied with before the accused person is released on bail.

(3)   A pre-release requirement (other than an accommodation requirement) is complied with when the requirements specified in the bail condition that imposes the pre-release requirement, and any requirements specified in the regulations, are complied with.

(4)   An accommodation requirement is complied with when the court is informed by an appropriate Government representative, in writing or in person, that suitable accommodation has been secured for the accused person.

(5)   If all pre-release requirements are complied with, the accused person is entitled to be released (subject to the other provisions of this Act) without any rehearing of the matter.

(6)   In this section, an appropriate Government representative means—

(a)                the Director-General of the Department of Family and Community Services or a delegate of the Director-General (if the accused person is a child), or

(b)                the Director-General of the Department of Attorney General and Justice or a delegate of the Director-General, or

(c)                the Commissioner of Corrective Services or a delegate of the Commissioner, or

(d)                any other person prescribed by the regulations.

Section 30, bail conditions may include enforcement conditions

(1)   Bail conditions can include one or more enforcement conditions that are imposed for the purpose of monitoring or enforcing compliance with another bail condition (the underlying bail condition).

(2)   An enforcement condition is a bail condition that requires the person granted bail to comply, while at liberty on bail, with one or more specified kinds of police directions (given for the purpose of monitoring or enforcing compliance with the underlying bail condition).

(3)   An enforcement condition can be imposed—

(a)   by a court only, and

(b)   only at the request of the prosecutor in the proceedings.

(4)   An enforcement condition is to specify—

(a)   the kinds of directions that may be given to the person while at liberty on bail, and

(b)   the circumstances in which each kind of direction may be given (in a manner that ensures that compliance with the condition is not unduly onerous), and

(c)    the underlying bail condition or conditions in connection with which each kind of direction may be given.

Note. For example, an enforcement condition imposed in connection with an underlying bail condition that requires a person to refrain from consuming drugs or alcohol may require the person to undergo testing for drugs or alcohol as directed by a police officer and may include specifications as to when such directions may be given.

(5)   An enforcement condition can be imposed only if the court considers it reasonable and necessary in the circumstances, having regard to the following—

(a)   the history of the person granted bail (including criminal history and particularly if the person has a criminal history involving serious offences or a large number of offences),

(b)   the likelihood or risk of the person committing further offences while at liberty on bail,

(c)    the extent to which compliance with a direction of a kind specified in the condition may unreasonably affect persons other than the person granted bail.

An example of some bail conditions, read as follows:

·      Attend the Downing Centre Local Court in person on 8 August 2020 at 9:30am;

·      Report to Sydney Police Station every Monday, Wednesday and Friday between 8am and 8pm;

·      Curfew- to remain at 1 Sydney Street Sydney NSW 2000 between 8pm and 8 am and present at the front door to police at their reasonable request;

·      To reside at 1 Sydney Street Sydney NSW 2000;

·      Not to contact any police witnesses or John Doe and Jane Doe;

·      Not go in any international airport or international place of departure from the Commonwealth of Australia;

·      Surety (pre-condition) – John Doe to deposit surety of $10,000 without security.

·      Surrender passport to the Registry of the Downing Centre Local Court (pre-condition);

·      Character acknowledgment of Ms Jane Doe to entered at the registry of the Local Court of NSW (pre-condition);

Pre-conditions are conditions imposed here although bail has be granted the accused cannot be released from custody unless the imposed pre-conditions have been finalised and entered into. In the case of property being placed as security this could take up to a month after bail has been granted to be entered into.

(11) What are protective bail conditions? 

Special bail conditions to protect the safety, welfare or property of any person, or to prevent interference with witnesses. It usually requires you to stay away from a specific person and/or place.

(12) Can I ask for my bail conditions to be changed? 

You can apply to change or vary your bail if there are new facts or a change of circumstance, for example, you have moved address. You can do so in court on the date you are next due to appear, or sooner by asking for an early listing at the court registry where you are scheduled to appear.

Variations may also be sought if the bail conditions imposed are too onerous and will ultimately lead to a breach. Either event you must consult a lawyer to provide advice.

Section 51 of the Bail Act 2013 states that interested person may make variation application:

(1)  An interested person may apply to a court or authorised justice for a variation of bail conditions.

(2)  An application under this section is a variation application.

(3)  Each of the following persons is an interested person—

(a)           the accused person granted bail,

(b)           the prosecutor in proceedings for the offence,

(c)            the complainant for a domestic violence offence,

(d)           he person for whose protection an order is or would be made, in the case of bail granted on an application for an order under the Crimes (Domestic and Personal Violence) Act 2007,

(e)            the Attorney General.

(4)  A court or authorised justice may, after hearing the variation application—

(a)           refuse the application, or

(b)           vary the bail decision the subject of the application.

(5)  An authorised justice may vary a bail decision only to the extent permitted by this Division.

(6)  A court or authorised justice is not to hear a variation application made by a person other than the accused person unless satisfied that the accused person has been given reasonable notice of the application, subject to the regulations.

(7)  A court or authorised justice is not to hear a variation application made by a person other than the prosecutor in the proceedings unless satisfied that the prosecutor has been given reasonable notice of the application, subject to the regulations.

(8)  A court or authorised justice must not vary a bail decision on the application of a person referred to in subsection (3) (c) or (d) unless the prosecutor in the proceedings has been given a reasonable opportunity to be heard on the application.

(9)  A court must not revoke bail on a variation application unless revocation is requested by the prosecutor in the proceedings.

(10) For the purposes of this section, the Commissioner of Police is, in the case of bail granted on an application for an order under the Crimes (Domestic and Personal Violence) Act 2007, taken to be the prosecutor in the proceedings.

Section 52 of the Bail Act 2013 states the powers of authorised justices to vary court decisions:

(1)  An authorised justice may vary a bail decision of a court on a variation application only if the variation application relates to bail conditions that are reviewable by a justice.4

(2)  The following bail conditions are reviewable by a justice—

(a)           a reporting condition, which is a bail condition that requires the person granted bail to report to a police station while at liberty on bail,

(b)           a residence condition, which is a bail condition that requires the person granted bail to reside at a specified address,

(c)            an association condition, which is a bail condition (however expressed) that requires the person granted bail to refrain from associating with a specified person or class of persons or to refrain from frequenting a specified place or class of places,

(d)           a curfew condition, which is a bail condition (however expressed) that imposes a curfew on the person.

(3)  After hearing the variation application, the authorised justice may—

(a)           vary a reporting condition, or

(b)           vary (but not revoke) a residence condition, an association condition or a curfew condition.

(4)  An authorised justice is not to vary a bail condition under this section unless satisfied that—

(a)           in the case of a variation application made by a person other than the accused person—the accused person has been notified of the application and no objection to the application has been made by the accused person, and

(b)           in the case of a variation application made by a person other than the prosecutor in the proceedings—the prosecutor has been notified of the application and no objection to the application has been made by the prosecutor.

(5)  An authorised justice is not to vary a bail condition under this section—

(a)           at any time before the determination of summary or committal proceedings against the accused person, if the bail condition was imposed by the Supreme Court, or

(b)           at any time after the determination of summary or committal proceedings against the accused person.

(6)  Subsection (5) does not prevent an authorised justice from varying a reporting condition—

(a)           to vary the days on which, or the times at which, an accused person must report to a police station, or

(b)           to vary the police station to which the accused person must report.

Section 53 of the Bail Act 2013 gives the court discretion to make or vary bail decision without bail application:

(1)  A court or authorised justice with power to hear a bail application may, of its own motion, on a first appearance by an accused person for an offence—

(a)           grant bail to the person (with or without the imposition of bail conditions), or

(b)           vary a previous bail decision made for the offence (but not so as to refuse bail).

(2)  A court or authorised justice may exercise a power under this section only to benefit the accused person.

(3)  This section does not limit the powers of a court when a bail application is made.

(4)  This section does not permit the grant of bail, without a bail application, for a show cause offence.

(13) What happens if I breach my bail? 

You may be arrested, taken to court and charged with an offence of breaching bail. Any breach of a protective bail condition is a serious offence, and you should get legal advice immediately.

Section 78 of the Bail Act 2013 provide the powers of bail authorities:

(1)  A relevant bail authority before which an accused person is brought or appears may, if satisfied that the person has failed or was about to fail to comply with a bail acknowledgment or a bail condition—

(a)           release the person on the person’s original bail, or

(b)           vary the bail decision that applies to the person.

Note. The power to vary a bail decision includes a power to revoke the bail decision and substitute a new bail decision—section 4 (3) (a).

(2)  (Repealed)

(3)  Part 3 applies to the exercise by the bail authority of its functions under this section.

(4)  However, a bail authority may revoke or refuse bail under this section even if the offence is an offence for which there is a right of release under Part 3. An offence ceases to be an offence for which there is a right to release if bail is revoked or refused under this section.

(5)  This section does not give an authorised justice power to vary enforcement conditions or impose new enforcement conditions. However, an enforcement condition imposed by a court may be reimposed by an authorised justice.

(6)  In this section, a relevant bail authority means—

(a)           an authorised justice, or

(b)           the Local Court, or

(c)            a court before which the person is required to appear by his or her bail acknowledgment.

Section 77 of the Bail Act 2013 states that police officers may take actions to enforce bail requirements:

(1)  Unless section 77A applies, a police officer who believes, on reasonable grounds, that a person has failed to comply with, or is about to fail to comply with, a bail acknowledgment or a bail condition, may—

(a)           decide to take no action in respect of the failure or threatened failure, or

(b)           issue a warning to the person, or

(c)            issue a notice to the person (an application notice) that requires the person to appear before a court or authorised justice, or

(d)           issue a court attendance notice to the person (if the police officer believes the failure is an offence), or

(e)            arrest the person, without warrant, and take the person as soon as practicable before a court or authorised justice, or

(f)             apply to an authorised justice for a warrant to arrest the person.

(2)  However, if a police officer arrests a person, without warrant, because of a failure or threatened failure to comply with a bail acknowledgment or a bail condition, the police officer may decide to discontinue the arrest and release the person (with or without issuing a warning or notice).

(3)  The following matters are to be considered by a police officer in deciding whether to take action, and what action to take (but do not limit the matters that can be considered)—

(a)           the relative seriousness or triviality of the failure or threatened failure,

(b)           whether the person has a reasonable excuse for the failure or threatened failure,

(c)            the personal attributes and circumstances of the person, to the extent known to the police officer,

(d)           whether an alternative course of action to arrest is appropriate in the circumstances.

(4)  An authorised justice may, on application by a police officer under this section, issue a warrant to apprehend a person granted bail and bring the person before a court or authorised justice.

(5)  If a warrant for the arrest of a person is issued under this Act or any other Act or law, a police officer must, despite subsection (1), deal with the person in accordance with the warrant.

Note. Section 101 of the Law Enforcement (Powers and Responsibilities) Act 2002 gives power to a police officer to arrest a person in accordance with a warrant.

(6)  The regulations may make further provision for application notices.

(14) What happens if I don’t attend court? 

If you are on bail and you fail to attend court when required or breach bail a warrant for your arrest can be granted by the presiding magistrate or judge to have you brought to court to answer for your non-appearance and or breach of bail.  You may also be charged with an offence of breaching bail.

Section 79 of the Bail Act 2013 states the offence of failing to appear, as:

(1)  A person who, without reasonable excuse, fails to appear before a court in accordance with a bail acknowledgment is guilty of an offence.

(2)  The onus is on the person granted bail to prove reasonable excuse.

(3)  The maximum penalty for an offence against this section (a fail to appear offence) is the maximum penalty for the offence for which bail was granted, subject to this section.

(4)  A penalty of imprisonment for a fail to appear offence is not to exceed 3 years and a monetary penalty for an offence against this section is not to exceed 30 penalty units.

It may also be the case where the court chooses to deal with your matter in your absence and apply a finding or guilty and impose a sentence appropriate to the offence before court. Ordinarily the types of sentences and penalties imposed in this circumstance are more severe than would have been had you appeared before court. A prison term may also be imposed.

If you miss your court appearance, you must still attend court as soon as possible afterwards. If you have a genuine reason for not being able to attend (e.g. medically unfit or an emergency) you should bring evidence of this with you. This may help you to avoid being charged with breaching bail.

If you know you’re not going to be able to attend court and you have a good reason, you should speak to your lawyer if you have one, or the court, as early as possible. You may be able to change the date or avoid a charge of breaching bail.

(15) Where can I get legal advice and representation?

You will be able contact any of our lawyers at Wakim and Partners on 1300 908 999 where one of our representatives will be able to assist you on arrest.

(16) Will I get bail for serious indictable offences?

Yes bail van be applied for with respect to serious indictable matters. The Show Cause test will be applied.

Part 3, Division 1A, Section 16A of the Bail Act 2013 defines the Show Cause requirement for certain serious offences as:

(4)   A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

Note: “why… detention is not justified” in effect shifts the onus of proof on the accused.

(5)   If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test—all offences).

(6)   This section does not apply if the accused person was under the age of 18 years at the time of the offence.

Section 16B of the Bail Act 2013 identifies the offences to which the show cause requirement applies.

Part 3, Division 2, Section 17 of the Bail Act 2013 state the assessment of bail concerns for Step 2 Unacceptable Risk Test as:

(5)   A bail authority must, before making a bail decision, assess any bail concerns.

(6)   For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will—

(a)   fail to appear at any proceedings for the offence, or

(b)   commit a serious offence, or

(c)    endanger the safety of victims, individuals or the community, or

(d)   interfere with witnesses or evidence.

(7)   If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision.

(8)   This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement).

(17) The Police are looking for me?

If police are looking for you, they will ordinarily leave a contact for you to call them on. Feel free to first consult one of our lawyers prior to presenting yourself to police or returning their call, to seek legal advice.

It may be the case that our lawyers will facilitate presenting you to police on agreement that bail is not an issue or having negotiated and settled an agreed set of bail conditions for your release from police custody after you have been charged, assuming police are seeking to arrest you.

Police may be looking for you for reasons other than charging you, whatever the case may be consult our lawyers prior to speaking or presenting to police.

You should not remain at large if you suspect you are facing criminal offences and aware police are seeking to arrest you. This will not assist you upon your bail application if the alleged offence to be laid against you is serious. It is extremely important in this scenario that you consult a lawyer who will contact police and facilitate your surrender and negotiate terms for your release prior to being police bail refused. A lawyer will also provide legal advice as to rights available with respect to police questioning and you right to silence and self-incrimination.

(18)  Do I need to think about bail before presenting myself to be arrested and charged?

Yes of course, if you suspect bail is an issue then you should contact a lawyer before presenting yourself to police.

Your lawyer will contact police and facilitate your surrender and advise you as to any bail concerns that may apply to your case. It is important you don’t remain at large.

You may want to organise your affairs and consider advising family and friends or your employer that you may be arrested and unavailable until bail is granted.