Bail Application Lawyers in Sydney and New South Wales

When determining a bail application, the Court will ordinarily be provided with a Police Fact Sheet, outlining the allegations and charges laid by police, together with a copy of the applicant’s criminal history.

Although a person is presumed innocent, the Court is required to consider both the allegations advanced by police and the applicant’s prior history when assessing bail. Where the alleged offences are serious, or where an applicant has an extensive or relevant criminal history, bail may be more difficult to obtain unless a carefully prepared and persuasive bail application is presented.

In accordance with section 17 Bail Act 2013 (NSW), the Court must first consider whether any bail concerns arise. A bail concern exists where there is a risk that, if released from custody, the applicant may:

1. fail to appear at future court proceedings
2. commit a serious offence
3. endanger the safety of a victim, another individual, or the community
4. interfere with witnesses or evidence

If one or more bail concerns are identified, the Court must then consider whether those concerns amount to an unacceptable risk. In doing so, the Court is required to take into the matters set out at section 18 Bail Act 2013 (NSW), to the extent they are relevant in the particular case. These include:

• the applicant’s background, personal circumstances, criminal history, and community ties
• the nature and seriousness of the alleged offence
• the strength of the prosecution case
• any history of violence
• whether the applicant has previously committed serious offences while on bail
• the applicant’s history of compliance or non-compliance with court orders, including prior bail conditions, apprehended violence orders, parole orders, or good behaviour bonds
• any warnings previously issued for non-compliance
• any criminal associations
• the likely length of time the applicant would remain in custody if bail were refused
• the likelihood of a custodial sentence being imposed if the applicant is convicted
• where applicable, the prospects of success of any pending appeal
• any special vulnerabilities or needs, including youth, Aboriginal or Torres Strait Islander status, or cognitive or mental health impairment
• the applicant’s need to be at liberty to prepare for court proceedings or obtain legal advice
• any other lawful need to be released from custody
• the applicant’s conduct towards any victim or a victim’s family following the alleged offence
• in serious matters, the views of the victim or a victim’s family, to the extent relevant to community safety concerns
• the bail conditions that could reasonably be imposed to address any identified bail concerns
• any associations with terrorist organisations, or involvement in activities supporting terrorism or violent extremism

If, after considering these matters, the Court is satisfied that one or more bail concerns amount to an unacceptable risk, bail must be refused. In such circumstances, the Court has no discretion to grant bail, regardless of personal hardship or other considerations.

The Court may grant bail with or without conditions. Bail conditions may only be imposed for the purpose of addressing or mitigating an identified unacceptable risk.

Any conditions imposed must be reasonable, proportionate to the seriousness of the alleged offence, and appropriately directed to the specific risk they are intended to manage. Conditions must not be more onerous than is necessary to address the relevant bail concerns.

Examples of bail conditions that the Court may impose include:

a)  A condition to live at a certain place (residence condition)

b)  A condition requiring the person to report to their local police station once every day (reporting condition),

c)  A condition not to drink alcohol or take drugs (drug/alcohol abstention condition),

d)  A condition not to approach or contact a specific person (non-contact condition),

e)  A condition not to leave home after a certain time each night (curfew condition),

f)   A condition to attend a Doctor or Community Mental Health Centre for treatment (treatment condition),

g)  A condition requiring an acceptable person to agree to forfeit a specified amount of money to the court (surety).

In most cases, a person will only have one opportunity to apply for bail in the Local Court. If bail is refused, a further application in the same court can only be made if the legal requirements under section 74 of the Bail Act 2013 are satisfied.

Section 74 of the Bail Act 2013 sets out the limited circumstances in which a further bail application may be made in the same court. These include situations where you were not legally represented at the time of the earlier application and are now represented by a lawyer, where new information has become available that is relevant to the issue of bail and was not previously before the court, where there has been a change of circumstances relevant to bail, or where the person in custody is a child and has only applied for bail once before.

If none of these grounds apply, the law still provides another important option. A refusal of bail in the Local Court may be challenged by making a fresh bail application in the Supreme Court of New South Wales.

Our lawyers have successfully secured bail in complex and high-profile matters, including cases involving very serious allegations where the prosecution case appeared strong on its face. This includes obtaining bail in the Supreme Court for a client charged with murder, allowing her to return home to her family while she waited 15 months between the grant of bail and the commencement of her trial.

A bail surety is a person who agrees to take responsibility for ensuring that an accused person attends court as required while on bail. As part of this commitment, the surety may be required to lodge money or property as security, or agree to forfeit a specified amount if the accused fails to appear in court. Acting as a surety is a serious legal obligation and should only be undertaken with a full understanding of what is involved.

To be accepted as a surety, a person must be approved by the court or an authorised officer. Generally, a surety must be over 18 years of age, have a current residential address, and have a genuine relationship with the accused. The surety must also disclose matters such as any criminal history, pending charges, bankruptcy issues, or debt recovery proceedings. Importantly, any money or property offered as security must belong solely to the surety and be free of debt, and it is an offence for another person to assist in paying the security.

A surety may be required to either deposit security with the court or agree to forfeit an amount without lodging security upfront. In both cases, the surety must demonstrate their financial capacity, usually by providing bank statements or property documents. The court or authorised officer may ask questions about the source of funds and recent transactions to ensure the security genuinely belongs to the surety.

A surety remains legally responsible until the bail matter is finalised, bail is withdrawn or revoked, or the court formally discharges the surety. If a surety becomes concerned that the accused may not comply with bail, they can apply to the court to be discharged from their obligations. If the accused fails to appear in court, the security may be forfeited, although the surety has the right to be notified and may apply to object to or set aside a forfeiture order.

In New South Wales, bail works very differently to the system commonly seen in the United States. In Australia, there is no system of commercial bail bonds or paying a percentage of bail to a private bail bondsman. Bail in NSW is a legal decision made by the court based on risk factors. By contrast, in many parts of America, people can “post bail” by paying money to a bail bonds company to secure release.

Careful preparation is critical to the success of a bail application. It is strongly recommended that proposed bail conditions are prepared in advance and handed to the Magistrate at the commencement of the application.

Defence material should also be ready and available for the Magistrate to read at the outset of the hearing. This may include:

1. Affidavits in support of bail
2. Letters from proposed sureties
3. A letter of consent from any person who has agreed to provide accommodation
4. Character references or other supporting documentation