CRIMINAL DEFENCE LAWYERS

Under Australian law, bail is the legal mechanism where a person who is arrested for a criminal offence can be released pending their trial, rather than being held in custody throughout its entire duration. Once the accused has been arrested and charged with a crime, the police will consider whether it is appropriate to release them on bail, and if so what bail conditions should be imposed. Bail can be obtained from the police after initial arrest, as well as from a Magistrate in the Local Court, a judge in the District Court, or a Justice in the Supreme Court. Research from the NSW Bureau of Crime Statistics and Research indicates that defendants are most likely to be granted bail in the Local Court. In 2007, 7.6% of defendants appearing in NSW Local Courts for any offence were refused bail, and 47.6% were refused bail in the Higher Courts, though both these figures have trended upwards in recent years. The purpose of this article is to help inform people unfamiliar with the legal system about the criteria that are taken into account by NSW courts when they are considering bail applications.

The New South Wales bail system

The regulation of the New South Wales bail system is outlined in the Bail Act 1978 (NSW), where section 32 provides a mandatory list of the criteria that must be considered in every bail application. It is important to note that the principle criterion applicable to bail applications is the probability or improbability of the defendant responding to bail, and not their supposed guilt or innocence. While the seriousness of the alleged offences may be taken into account during bail applications, the courts cannot rely on it as the sole determinant of whether bail will be granted.

It should be noted that there is a legal presumption under section 9 of the Act for bail being granted for all offences, except for those listed under section 9(1). A defendant will usually be entitled to bail if they have been arrested for a minor offence, such as one only punishable by a fine or listed in the Summary Offences Act 1988 (NSW). Offences that are excluded under section 9(1) include serious indictable drug, violence or firearms offences, or where a person is already subject to a long term supervision order or on lifetime parole. Section 9C also requires the court not to grant bail to a defendant charged with the crime of murder, unless it is justified by exceptional circumstances.

Criteria considered in bail applications

There is a range of criteria listed in section 32(1) of the Bail Act 1978 (NSW), which the courts apply when considering a defendant’s eligibility for bail. The court will consider the probability of the defendant appearing in court, taking into account:

• The defendant’s background and community ties, including the history and details of their residence, employment and family situations, and any prior criminal record.
• Any previous failure by the defendant to appear in court pursuant to a bail undertaking.
• The circumstances of the alleged offence, including its nature and seriousness, the strength of the evidence against the defendant, and the severity of the possible penalty.
• Any other specific evidence indicating whether or not it is probable that the defendant will appear in court.

The courts will also give consideration to the interests of the defendant, including:

• The period that the defendant would be obliged to spend in custody if bail were refused, and the conditions of custody.
• The defendant’s need to be free to prepare for their appearance in court and to obtain legal advice.
• The defendant’s need to be free for any other lawful purpose.
• Whether in the opinion of the court, the defendant is incapacitated by intoxication, injury or drug-use, or is otherwise in danger of physical injury, or requires physical protection.
• Whether the defendant is under the age of 18 years, has an intellectual disability or mental illness, or is an Aborigine or Torres Strait Islander.
• The defendant’s criminal history, including the nature and seriousness of any previous indictable offence convictions, the number of any previous such offences and the length of time between these offences.

The court will also take into account the interests of other potentially affected parties when determining whether to grant bail. The court may consider the protection of the victim of the alleged offence, the protection of the victim’s close relatives, or any other person believed to require protection in the circumstances.

The courts will also consider the protection and welfare of the wider community, including:

• The nature and seriousness of the offence, particularly whether the offence is of a sexual or violent nature or involves an offensive weapon.
• Whether the defendant has previously failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition.
• The likelihood the defendant would interfere with evidence, witnesses or jurors.
• The likelihood the defendant would commit any serious offence while on bail.
• If it is a serious offence whether, at the time the defendant allegedly committed the offence, the person had already been granted bail or parole for any other serious offences.
• If the offence for which bail is being considered involves the possession or use of an offensive weapon, the defendant’s prior criminal record of such offences.

Granting of Bail

Once bail is granted, section 34 requires the defendant not to be released until they undertake in writing to appear before the court whenever required to, and to notify the court of any change of address.  Bail may be unconditional, or conditions may be attached to it, such as the defendant agreeing to forfeit money if they fail to meet their bail undertakings, reporting to police on a regular basis, or surrendering their passport.

Refusal of Bail

Under section 22A, a court must refuse to entertain an application for bail if that application has already been made and dealt with by the court, unless there are valid grounds for a further application. As such, it is important that the application be prepared properly, as the only way another application can be made afterwards is if it can be demonstrated that one of these grounds would apply. The grounds are that:

• The defendant was not legally represented when the previous application was dealt with, and now they do have legal representation, or
• Information relevant to the grant of bail that was not presented to the court in the previous application, will be presented in the current application, or
• Circumstances relevant to the grant of bail have changed since the previous application was made.

A court may also refuse to entertain an application for bail if it believes that the application is frivolous or vexatious in nature.

If you have any further questions about how the criteria considered during a bail application would apply to you, or need any further information, please contact us.

Getting Help

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com

One Response to “The criteria given consideration in bail applications”