16 / 8 / 2022

Bail Conditions Based on Bail Act 2013

When you are arrested and charged with a criminal offence, one of the first considerations after the charges are laid is whether you will be granted bail. In NSW, the Bail Act 2013 governs decisions relating to bail.

You can be granted bail by police after being charged. Police will likely impose some conditions on you and you will be required, as part of your bail, to attend court on the first return date for the court attendance notice.

For more serious matters, police will not grant bail and you will have to go before a Magistrate in the Local Court to make a formal application for bail (release application).  Police must ensure that you are brought before the court to make a release application as soon as is practicable.

When appearing in court for a release application, the first consideration is whether your matter is a “show cause” matter. If your matter is a show cause matter, you must satisfy the court that your detention is not justified.

If your matter is not a show cause matter or if you are successful in establishing that your detention is not justified, the court will then assess whether there are any bail concerns and, if so, whether these concerns give rise to any unacceptable risk that you may:

  1. fail to appear at any proceedings for the offence, or
  2. commit a serious offence, or
  3. endanger the safety of victims, individuals or the community, or
  4. interfere with witnesses or evidence.

If bail concerns are identified, the court will consider what bail conditions can be imposed to mitigate any unacceptable risk. Any bail conditions imposed must be reasonable and proportionate to the offences for which you are charged and appropriate to the bail concern that the court has identified. Bail conditions should not be more onerous than necessary to the bail concern to which it relates and it must be reasonably practicable for you to comply with the bail condition imposed.

Some common bail conditions include:

  • Residential: that you are to reside at a specified address
  • Attendance: to attend court when your matter is listed (unless you are excused)
  • Curfew: that you are not to be absent from your residential address during certain hours
  • Enforcement: that police can attend (as specified by the court) at your bail address to ensure that you are present at the address during curfew hours or that you must submit to random urine testing
  • Passport surrender: that you must surrender your passport to the court or to police
  • Not to possess a mobile phone: this condition is usually imposed when a mobile phone has been used in the commission of an offence
  • Reporting: that you must report to a specified police station on the days stipulated by the court
  • Security: that an acceptable person provides security in the form of cash or property and acknowledges that if you fail to comply with your bail conditions they will lose the money or property posted as security. This condition can involve either a deposit of cash with the registry by an acceptable person or a promise to forfeit a specified sum if you fail to comply with your bail conditions. Whether the court will require deposit or promise to forfeit usually depends upon the seriousness of the alleged offences. Depositing property as security is more complicated and often requires a valuation of the property to be completed and, if the property is mortgaged, written approval from the bank. The acceptable person will need to provide the registry with confirmation of their identity and if they have any criminal convictions, they may not be considered “acceptable” for the purposes of providing security for your bail.
  • Non-association: that you are not to contact or go near named people (this is usually imposed in respect of co-accused and/or for the protection of the alleged victim/s)
  • Place restriction: that you are not to go into a suburb or Local Government Area or within a specified distance (for example, not to go within 5km of Kings Cross)
  • Abstinence: not to drink alcohol or take illicit drugs
  • Residential rehabilitation: to reside at a residential rehabilitation facility

If you are unsuccessful in obtaining bail in the Local Court, you can make an application for bail to the Supreme Court.

When applying for bail it is essential you seek legal advice and engage a solicitor to appear as tailoring proposed bail conditions to your specific circumstances can often be the difference between successfully obtaining bail or having to remain in custody as your matter progresses through the courts.

Our team are experienced in running release applications in the Local, District and Supreme Court. If you have any queries in relation to an application for bail or require legal advice or representation in relation to any legal matter, please contact us to speak with a lawyer.

Helen Christinson, Associate