GUIDE ON BAIL

The question of bail is extremely important. When a person is charged with a criminal offence, they may be granted bail or they may be bail refused.

If a person is bail refused, they will be held in custody until they are either granted bail, their matter finalises, or their sentence expires. It is important to speak with a criminal defence lawyer as soon as possible to determine your prospects of bail.

 

WHO GRANTS BAIL?

There are three main ways a person can be granted bail while waiting for their matter to be finalised.

1.      The Police – After a person is arrested, they will be taken into custody and processed. A person may be asked to do an interview as well as many other things. They may then be charged. Once a person is charged the custody sergeant at the relevant police station will make a decision as to whether bail should be granted.

2.      The Local Court – If the police decide to refuse bail, the arrested person must be given the opportunity to appear before the nearest local court as soon as possible. A defendant will then have the opportunity to make a bail application if they wish. If they decide not to make a bail application the court will refuse bail and they will be taken into custody.

3.      Supreme Court – If a person makes a bail application in the Local Court and is refused bail, they may make a further application to the Supreme Court of New South Wales. The judge will hear the matter ‘de novo’ which means that the defendant is able to consider evidence that wasn’t considered in the local court.

 

HOW IS BAIL DETERMINED BY A COURT?

In Australia, the Bail Act 2013 (Cth) provides a two-part test, the first of which only applies in certain circumstances. The tests are as follows:

1.      Show Cause Test (only applies in certain circumstances); AND

2.      Unacceptable risk test.

 

THE SHOW CAUSE TEST:

When does it apply?

Section 16B of the Bail Act 2013 (Cth) provides that the show cause test applies to defendants over the age of 18, where they have been charged with any of the following offences:

  1. If they are charged with an offence that is punishable by imprisonment for life, OR
  2. A serious indictable offence which involves:
    1. Sexual intercourse with a person under the age of 16 years, OR
    2. The infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years, OR
  3. A serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm if the accused person has previously been convicted of a serious personal violence offence, OR
  4. Any of the following offences:
    1. A serious indictable offence under Part 3 or 3A of the Crimes Act 1900 (NSW) or under the Firearms Act 1996 (NSW) that involves the use of a firearm;
    2. An indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place, OR
    3. A serious indictable offence under the Firearms Act 1996 (NSW) that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm.
  5. Any of the following offences:
    1. A serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon, OR
    2. An indictable offence that involves the unlawful possession of a military-style weapon, OR
    3. A serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon, OR
  6. An offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act, OR
  7. An offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code, OR
  8. A serious indictable offence that is committed by an accused person:
    1. while on bail, OR
    2. while on parole, OR
  9. An indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order, OR
  10. A serious indictable offence of attempting to commit an offence mentioned elsewhere in this section, OR
  11. A serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section, OR
  12. A serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under:
    1. This Act, OR
    2. Part 7 of the Crimes (Administration of Sentences) Act 1999, OR
    3. The Criminal Procedure Act 1986, OR
    4. The Crimes (Sentencing Procedure) Act 1999.

WHAT IS SHOW CAUSE, AND HOW CAN YOU SHOW CAUSE?

Section 16A of The Bail Act 2013 (Cth) provides that where a person has been charged with any of the above offences, they have to “show cause” as to why their detention is unjustified. This can be shown by a single factor or a powerful combination of factors (DPP v Moukhallaletti [2016] NSWCCA 314). Some examples of showing cause are:

  •  A weak prosecution case, OR
  • Poor conditions in custody, OR
  • An inability to prepare a defence in custody, OR
  • The unlikelihood of a custodial sentence being imposed, OR
  • The persons need to be free to receive specific medical care, OR
  • Delay in proceedings, OR
  • Enrolment in rehabilitation for Drugs, Alcohol or Mental Health facility.

 

There are many other examples of ways in which a person can show cause, it is often something that comes down to the specific circumstances of the case. You should speak to a criminal defence lawyer about how to best approach the Show cause test.

 

I HAVE SHOWN CAUSE, WHAT HAPPENS NEXT?

If the court determines that cause has been shown, the person will then have to show why they are not an ‘unacceptable risk’.

 

I HAVE FAILED TO SHOW CAUSE, WHAT HAPPENS NEXT?

If the court determines that a person has failed to show cause as to why their detention is unjustified the person will be bail refused.

 

UNACCEPTABLE RISK TEST:

What is the unacceptable risk test?

Section 17 of the Bail Act 2013 (Cth) provides four bail concerns that the court must consider when determining whether a person may or may not be an unacceptable risk.

a)      Whether the person will fail to appear at Court or leave the jurisdiction, AND

b)      Whether the person will commit a serious offence while on bail, AND

c)      Whether the person will endanger the safety of victims, individuals or the community, AND

d)      Whether the person will interfere with witnesses or evidence.

 

WHAT WILL THE COURT CONSIDER IN DETERMINING WHETHER A PERSON IS AN UNACCEPTABLE RISK?

When a court is determining whether the bail concerns a person poses, they have regard to the factors set out in section 18 of the Bail Act 2013 (Cth) as follows:

  1. the accused person’s background, including criminal history, circumstances and community ties,
  2. the nature and seriousness of the offence,
  3. the strength of the prosecution case,
  4. whether the accused person has a history of violence,
  5. whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction),
  6. whether the accused person has a history of compliance or non-compliance with any of the following—
    1. bail acknowledgments,
    2. bail conditions,
    3. apprehended violence orders,
    4. parole orders,
    5. home detention orders, good behaviour bonds or community service orders,
    6. intensive correction orders,
    7. community correction orders,
    8. conditional release orders,
    9. non-association and place restriction orders,
    10. supervision orders,
  7. 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,
  8. whether the accused person has any criminal associations,
  9. the length of time the accused person is likely to spend in custody if bail is refused,
  10. the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
  11. if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,
  12. 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,
  13. 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,
  14. the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,
  15. the need for the accused person to be free for any other lawful reason,
  16. the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,
  17. 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,
  18. the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A,
  19. 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),
  20. whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism,
  21. whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

 

Having regard to all of the above factors (and nothing else) the court must determine whether a person poses an unacceptable risk with respect to the four previously mentioned bail concerns.

 

THE COURT HAS DETERMINED THERE ARE NO UNACCEPTABLE RISKS, WHAT HAPPENS NEXT?

If there are no unacceptable risks that the defendant may do any of the following:

a)      Whether the person will fail to appear at Court or leave the jurisdiction, AND

b)      Whether the person will commit a serious offence while on bail, AND

c)      Whether the person will endanger the safety of victims, individuals or the community, AND

d)      Whether the person will interfere with witnesses or evidence.

 

The court must grant bail either with or without conditions pursuant to section 20(1) of the Bail Act 2013 (Cth).

 

THE COURT HAS DETERMINED THERE ARE UNACCEPTABLE RISKS, WHAT HAPPENS NEXT?

If the court determines that there are unacceptable risks posed by the defendant that he may do any of the following:

a)      Whether the person will fail to appear at Court or leave the jurisdiction, AND

b)      Whether the person will commit a serious offence while on bail, AND

c)      Whether the person will endanger the safety of victims, individuals or the community, AND

d)      Whether the person will interfere with witnesses or evidence.

 

The court must refuse bail pursuant to section 19(1) of the Bail Act 2013 (Cth).

 

CAN I APPLY FOR BAIL MULTIPLE TIMES?

Generally, a person cannot make more than one bail application to the same court (i.e., if a person made a bail application to the Local Court previously, they cannot make a second application to the Local Court later on). Section 74 of the Bail Act 2013 (Cth) says that the court must refuse an application for bail unless the person seeking bail can prove one of the following grounds:

a)      The accused person was not legally represented when the original application was made, OR

b)      If fresh material information relevant to bail is to be presented in the new application that was not presented in the original application, OR

c)      If there has been a change of circumstances since the previous bail application, OR

d)      If the accused person is a child and the only application was made on the child’s first appearance.

 

CHANGE OF CIRCUMSTANCE:

Something that may constitute a change of circumstances in one case does not necessarily mean it will constitute a change of circumstance in another (R v BNS [2016] NSWSC 350 at [45]. Some examples of a change in circumstances that may allow for a second application may be the provision of a greater surety from a reliable person or admission into a residential rehabilitation program.

 

THE IMPORTANCE OF LEGAL ADVICE

If you or a person you know has been arrested, charged, and refused bail it is crucial that you get legal advice as soon as possible. Our team are renowned for having bail granted in the most unlikely of circumstances. Feel free to reach out to the team at Australian Criminal Defence on 0415 932 866 to book a free consultation.

 

Bail Application Case Studies

  • Our client was charged with the drug importation of 1.6 kg of cocaine.  Our client appeared before Central Local Court for his first bail application with a different law firm representing him. The client was bail refused. Our firm was then instructed in the matter and our team lodged a bail application in the NSW Supreme Court. Our team sought the available brief of evidence from the prosecution and having obtained the brief and considered the evidence, our team was successful in arguing at the bail hearing that the prosecution case was not a strong case.  On that basis the Judge granted our client bail on very strict bail conditions that were proposed by our criminal lawyer Joseph Harb.
  • Our client was charged with domestic violence offences against his former partner. Our client was already on bail for other domestic violence offences against the same complainant. This triggered the show cause provisions. Our team were instructed to make a bail application on the following day our client was charged and refused bail by police. Our solicitor Joseph Harb appeared before Liverpool Local Court and convinced the magistrate to grant our client bail.
  • Our client was charged with 6 counts of the supply of prohibited drugs of cocaine and MDMA. Our client was already on bail for unrelated assault charges. Our client instructed our team to make a bail application at Waverley Local Court. Our criminal lawyer Joseph Harb appeared at the bail hearing and was able to convince the magistrate that cause was shown and that bail should be granted. Our client was granted bail on the day before his 21st birthday.