Bail refers to an accused person being released into the community to be at liberty after being charged with a criminal offence. Persons released on bail give an undertaking to return to court to face the allegation for which they have been charged. Bail may be granted by the police, by an authorised justice or by judicial officers such as a judge or a magistrate.

Whether bail is granted or not will depend on the facts of each matter. It is essential to speak with a lawyer as soon as possible if you have been charged with an offence. Obtaining bail can be complicated and often requires strong and specific argument from an experienced defence lawyer to convince the court an accused person is not a risk to the community, will not commit any offences while on bail or interfere with any witnesses and will return to their next court date.

Police Bail

When an accused has been taken into custody by the police, the police are required to make a “bail decision”. This may be to:

  • Release the accused to attend court at a later date without bail

  • Release the accused to attend court at a later date with bail or

  • Refuse bail until the accused is brought to court – this should be as soon as practicable.

The accused should speak with a lawyer as soon as possible. A criminal defence lawyer can advise the accused at the police station or over the phone. The lawyer can also discuss with police, the potential conditions which may be imposed on the accused if he or she is granted bail. The lawyer may also request a review of a bail decision by a senior police officer – this must be done at the request of the accused.

Court Procedure and Bail Applications

There are three categories of court bail applications:

  • a release application made by an accused person:

  • a detention application made by the prosecution: or

  • a variation application, which may be made by an “interested person”. An “interested person” may be either the accused, the prosecution, the complainant in a domestic violence offence or a person for whose protection an order is or would be made in an application under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Where a person is refused bail by the police following an arrest, or ‘police bail’, they are to be brought before the court or authorised justice as soon as practicable. It is essential at this point to have retained a criminal defence lawyer to ensure a proper bail application is made to the court.

Depending on the particular offence and facts of the matter, there are specific legal elements, which must be argued to the court, and the court must be convinced of these elements for bail to be granted. A lawyer will generally need to convince the court that the defendant is not a risk to the community will return to their next court date and will not interfere with any relevant witnesses.

If bail is granted, it may include a condition that the accused or a bail guarantor(s) enter into an agreement to forfeit an amount of money nominated by the court in the event the accused fails to appear before the court in accordance with their bail acknowledgement. The accused and/or bail guarantor(s) will need to attend the court registry to sign the agreement. An “agreement and deposit of cash” is signed by the accused or the bail guarantor and the cash is deposited with the clerk of the Local Court.

If you have been charged with an offence, it is vital to speak with a lawyer to ensure your matter is properly processed by both the police and the court. Without a lawyer, you risk being held on remand or having bail refused inappropriately and your liberty is at stake.

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