What is Bail?
The rules relating to bail in NSW are contained in the Bail Act, 1978. 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.
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’. If the Police 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).
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 and can be grouped into three broad categories:
- The likelihood that you will appear in Court on the next occasion;
- Your interests; and
- The protection of any victims of the crime and of the community generally.
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 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, see the article titled “Bail Presumptions” on this website.
What conditions can be placed upon my bail?
Apart from having to attend Court, 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;
- that you must not approach certain persons (eg the victims of the alleged crime), and/or associate with certain persons (eg your alleged ‘co-offenders’) and/or attend or approach certain places (eg areas where you are suspected of committing crimes);
- 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;
- that you or an ‘acceptable person’ agree, without a ’security’, to forfeit an amount of money if you fail to appear in Court;
- that you attend a drug and/or alcohol program; and
- that you surrender your passport.
Who is an ‘acceptable person’?
An ‘acceptable person’ is someone who has known you for some time 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 or Judge can:
- issue a ‘bench warrant’ for your arrest, and
- 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:
- revoke the order,
- vary the order (possibly reducing the amount forfeited) or
- 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.
- 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 a program you were ordered to attend whilst on bail. 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 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.
- 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 Prosecutor to see if the Prosecutor will:
- ‘consent’ or agree to the changes, or
- agree not to oppose your bail generally (note: the Prosecutor may oppose your release on bail altogether even if you are already out of custody).
Your solicitor can then:
- advise you of the chances of getting your bail varied,
- advise you of any risks (especially if bail is likely to be opposed generally), and
- arrange for and appear with you on the hearing of your application to the Court.
What if I’m refused bail?
If you are still unsuccessful or you are unable to meet your bail conditions, you are entitled to apply to the Supreme Court of NSW for bail.
Supreme Court Bail
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 attend 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.
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:
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
- 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 (e.g. 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) for as long as the caveat is in place.
- In order to get back your property and remove the caveat, you must:
- 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
- Complete a ‘Withdrawal of Caveat’ form, which is available from legal stationery shops and the Supreme Court Bails Matters Counter; then
- Go to the Supreme Court Bail 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
- 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.
At Brazel Moore Lawyers we have Lawyers experienced in criminal law who are able to help you in any of these situations.