Bail

When a person is granted bail, that person enters into a bail undertaking. They are entitled to be released (if in custody) and remain at liberty. A person granted bail is to undertake in writing to appear before the court as notified and to notify the court of any change in the person’s residential address. A person is entitled to be granted bail so long as the person is not in custody for some other offence. Additionally, a person can be granted bail when not in custody.

All persons in custody will appear by way of audio-visual link.

There are interpreters available for persons with English as a second language or who are hearing impaired. The weekend and public holiday bail courts for both adults and juveniles are conducted at Parramatta Local Court. This court will deal with adult bail hearings for all persons arrested in the Sydney metropolitan area and juvenile bail hearings from across the state.

The Local Court usually determines bail for summary offences. More senior courts often deal with indictable offences. A police officer can grant bail provided the court hasn’t already made a determination. If not authorised to grant bail the Officer will bring the person before the court. After an officer makes a determination as to bail they must inform the person that they may communicate with a legal practitioner and provide them with such facilities to do so as are reasonable in the circumstances.

A court will refuse to hear a further application if bail has already been determined unless:

• The person was not legally represented and now has legal representation
• Information relevant to bail was not presented in the previous application
• Circumstances relevant to the grant of bail have changed

A court may dispense with bail, meaning the person is to remain at liberty until required to appear before court. Where the court in respect of bail makes no specific order or direction, the court shall be deemed to have dispensed with the requirements for bail.

There is a right to be released on bail for minor offences, i.e. not punishable by imprisonment, unless a person:

• Has previously failed to comply with a bail undertaking or bail conditions imposed
• Is incapacitated by intoxication, injury, drug abuse or is otherwise in danger of physical injury or in need of physical protection
• Stands convicted of the offence or the person’s conviction for the offence is stayed

A person accused of one of these offences is not to be granted bail unless the person satisfies the court that bail should not be refused. Bail cannot be dispensed with for any of the following offences:

• Certain offences under the Drug Misuse and Trafficking Act
• Serious Firearms and weapons offences
• Certain repeat property offences, where the person is accused of two (2) or more serious property offences, not being offences arising out of the same circumstances and the person has been convicted of one or more serious property offences within the last two (2) years
• Offences carrying prison terms where the person is on lifetime parole
• Breach of extended supervision orders or interim supervision orders

There is a general presumption in favour of bail except for the following offences, where bail will generally not be granted except in extraordinary circumstances:

• Murder or Manslaughter
• Attempted Murder
• Aggravated Sexual Assault
• Kidnapping
• Robbery
• Supplying prohibited drugs on an ongoing basis
• Certain offences under the Drug Misuse and Trafficking Act where the quantity concerned is alleged to be twice the indictable quantity
• Certain domestic violence offences
• Offenders who have a prior conviction for one of the above offences

There is an exception to the presumption in favour of bail if the person is alleged to have committed an offence while:

• On bail
• On parole
• In custody
• Serving a sentence but not in custody
• Was subject to a good behaviour bond or program intervention order

A person accused of one of the above offences is entitled to be granted bail unless the court, following consideration of the matter, feels justified in refusing bail. A person is not entitled to be granted bail if the person in custody is serving a sentence of imprisonment in connection with another offence and the court is satisfied that the person is likely to remain in custody in connection with that other offence for a longer period than that for which bail in connection with the later offence would be granted.

There are four distinct criteria to be considered in bail applications:

1. The probability of whether or not the person will appear in court in respect of the offence having regard to:
   • The person’s background and community ties, as indicated by the history and details of the person’s residence, employment and family situations and the person’s prior criminal record
   • Any previous failure to appear in court
   • The circumstances of the offence, the strength of the evidence and severity of the probable penalty
2. The interests of the person having regard to:
   • The period the person may be obliged to spend in custody if bail is refused
   • The needs of the person to be free to prepare for appearance in court
   • Whether or not the person is incapacitated by intoxication, injury or drug abuse or is otherwise in danger of physical injury or in need of physical protection
   • If the person is under 18 years of age, or is an Aboriginal person or Torres Strait Islander, or has an intellectual disability or is mentally ill
3. The protection and welfare of the community having regard to:
   • The nature and seriousness of the offence
   • Where the person has refused to observe a previous bail condition
4. Whether or not the person is likely to commit one or more serious offences while on bail

A person is entitled to bail either unconditionally or subject to bail conditions.

Possible conditions of bail include:

• That the accused enter into an agreement to observe specified requirements as to conduct
• That the accused or an acceptable person enter an agreement to forfeit a specified amount of money if the accused person fails to comply with their bail undertaking. The court may revoke bail if it appears the security is no longer intact
• That the accused surrender their passport
• That the accused undergo assessment for participation in an intervention program or other program for treatment or rehabilitation
• The accused enters into an agreement prohibiting him from associating with specified persons
• The accused enters into an agreement restricting him from visiting a specified place or district

Potential conditions of bail include:

• Not driving a motor vehicle
• Not drinking alcohol
• Curfew

Magistrates have the power to review bail decisions. If refused a person may apply to a higher court for review of a bail condition. Senior Police Officers have the power to review and grant bail if:

• The accused is no longer incapacitated by intoxication, injury, drug abuse and no longer needs protection
• There is a significant change in circumstances
• There are exceptional circumstances justifying bail

It is an offence to fail without reasonable excuse to appear before court in accordance with a bail undertaking. It is an arrestable offence to abscond on bail or breach a bail condition. Under such circumstances:

• A police officer may arrest a person without a warrant
• The Court may issue a warrant
• Court may revoke bail.