This article will discuss what is bail, how it works in New South Wales, and the different types available to accused persons. Bail (or bail undertaking) is a legal process in which an accused person is released from custody while they await trial.
In NSW, the Bail Act 2013 govern these laws. Its major purpose is to ensure that a person attends court when they need to make court appearances, and does not commit any further offences.
The Nature of Bail
To understand what is bail, one must know its nature. It is a legal agreement between an accused person and the court. The accused can be released from custody, provided they agree to certain conditions. These conditions may include:
- Regularly reporting to the police
- Surrendering passports or travel documents
- Providing a surety (a sum of money) as a guarantee that they will return to the Local or Supreme court or the Magistrates court
- Not contacting certain people or going to certain places
If an accused person complies with their conditions, they will be allowed to remain in the community until their trial or hearing. However, being held in custody whilst awaiting the next court date can have serious implications. Just as the courts regard the use of prison as a ‘last resort’ in sentencing, remanding a defendant in custody should also be regarded as a last resort.
Types
It is important to understand the three types of bail in NSW.
Police Bail
This is applicable when an accused is released from custody by the police rather than by a court. This type is for minor offences, and the accused may be required to attend a police station at a later date.
Court Bail
This is when a court releases an accused person from custody. This type is for more severe offences. The court will consider several aspects when determining whether to grant it, including the accused person’s criminal history, the nature of the serious offence, and the likelihood of the accused person returning to court.
Conditional Bail
This is when an accused person is released from custody by a court but with certain conditions attached. These conditions may include surrendering a passport, reporting to a police officer or station regularly, or attending drug and alcohol counselling.
Bail Applications
When an accused person is arrested and charged with an offence, they may apply for bail. The Bail Act 2013 provides the definition, and outlines several factors the court must take into account when deciding whether to grant bail.
If the court refuses the application, the offender may apply again at a later court date. However, they must show that there has been a change in circumstances since their last application. This is the step-by-step process on how it works:
Step 1: Arrest and Charging
The first step is the arrest and charging of the accused. Once a person has been arrested and charged with a criminal offence, they will be in the custody of the police or prison until their bail application is heard.
Step 2: Bail Application
The second step is to make a application. This can be done either by the accused person or their legal representative. A magistrate or judge will hear the application and consider exceptional circumstances, including the offence’s seriousness, the accused person’s criminal history, and the likelihood of them to attend court if released on bail.
Step 3: Bail Hearing
The third step is the hearing. At the hearing, the magistrate or judge will hear arguments from the prosecution and defence about whether the accused person should be granted bail.
The accused person’s legal representative will present evidence to support their case for bail, such as employment or family ties to the community. At the same time, the prosecution will argue against bail, citing the seriousness of the offence or the likelihood of the accused person fleeing.
Step 4: Bail Conditions
If the magistrate or judge decides to grant bail, they will also set some conditions. These conditions may include:
- reporting to a police station regularly
- surrendering their passport
- not contacting certain people.
If the accused person violates any of these conditions, the court may revoke their bail and decide to take them back into custody.
Factors Considered When Granting Bail
It is essential to understand the factors that the court will consider when deciding whether to grant bail.
Strength of the Evidence
The strength of the evidence against the accused is crucial. If the evidence against the accused is weak, there is a higher chance that the court will grant it. On the other hand, if the evidence is strong, the accused is more likely to be denied bail. The court considers the nature of the evidence, including the admissibility of the evidence, the credibility of witnesses, and the strength of the prosecution’s case.
Risk of Flight
Another factor is the risk of flight. The court assesses whether the accused will likely abscond or fail to appear in court. The court considers several factors, including the accused’s ties to the community, their employment status, their criminal history, and whether they have any outstanding warrants. If the court determines the accused is a flight risk, they are less likely to be granted bail.
Risk to the Community
The court also considers the risk the person may pose to the community. It assesses whether the accused will likely threaten, intimidate, or harm anyone if released. The court considers the nature of the offence, the accused’s history of violence, and any other relevant factors. If the court evaluates that the person is a risk to the community, they are less likely to receive bail.
The Bail Act 2013
The Bail Act 2013 is the primary legislation governing the process in NSW. As discussed above, these principles include the presumption of innocence, the right to liberty, the protection of the community, and the risk of the accused failing to appear in court.
Moreover, the Act also sets out the types – such as conditional, unconditional, and police bail. It also outlines the conditions. This includes reporting to the police, surrendering their passport, or not contacting specific individuals.
In conclusion, understanding what is bail and its legal effects is essential. Bail allows authorities to release persons from custody while they await trial. Different types of bail are available, and the court may impose conditions on an accused person’s bail. Authorities decide bail applications on the basis of many factors. Moreover, a person may apply for bail again if they get refusal the the first time.
The Importance of Legal Help
A criminal lawyer can help their client obtain bail in New South Wales, Australia. They can assist their client in preparing an application, negotiating with the prosecution to secure consent, and appealing a decision if necessary.
If you are facing any charge of criminal offence in New South Wales and require legal assistance, JB Solicitors has a team of competent criminal lawyers who will help you. We can also cater to your needs for processing applications and other negotiations in the case.
Contact us today.
