Bail often sets the tone for the rest of your criminal proceedings. It is important to seek legal advice and obtain representation if you are an accused person involved in bail proceedings of any kind. Contact us for a free initial consultation.
Criminal proceedings begin when a person is charged with an offence. Bail law sets out the rules governing the liberty or detention of an accused person while proceedings are under way.
Today, NSW bail law is set out in the Bail Act 2013. The Act defines bail as “authority to be at liberty for an offence”. The freedom of an accused person is an important human right, because an accused is innocent until guilt is proved beyond reasonable doubt. A bail authority – the person authorised to make a bail decision – must “have regard to the presumption of innocence and the general right to be at liberty”.
There are four kinds of application under the Bail Act. They are:
- A release application by an accused person;
- A detention application by a prosecutor;
- A bail variation application by any “interested person”;
- An application by the prosecutor for a “stay” of a grant of bail for three days, for a “serious offence”.
In a bail application, the Act defines a “two-part test”. The two parts are generally described as the “show cause” and the “unacceptable risk” tests. The “show cause” component requires persons accused of certain offences to show cause as to why continued detention is not justified. The “unacceptable risk” test requires an accused to demonstrate that there are no unacceptable risks of granting bail that cannot be mitigated by the imposition of conditions. Such risks include flight risks, the risk of interference with witnesses or evidence and risks to the community.
- Where there are no unacceptable risks, bail will be granted.
- When there is an unacceptable risk that can be sufficiently mitigated, “conditional bail” will be granted. Conditional bail may involve requirements such as regular reporting to a police station, a curfew, surrender of your passport or the lodgement of surety monies.
- If there is an unacceptable risk that cannot be mitigated by bail conditions, then bail will be refused.
In the event that bail is refused by Police, the matter must be brought before the Courts. At first instance, a Local Court Magistrate considers the application. If a release application by an accused person is refused by the Local Court, a further application may be brought in the Supreme Court. Subsequent applications may be made in certain circumstances, but these are limited.