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Bail Application and Conditions

A bail application is a request to a court that an accused or convicted person be released from custody pending the determination of criminal proceedings against them. If you are charged with an offence you may either be granted bail by the police or the Local Court. BSM criminal lawyers have extensive experience in applying for bail for our clients.

The Bail Application Process

If you are charged with an offence and not granted bail by the police you will need to make a bail application in the Local Court.  When the Local Court makes a decision whether you should be released on bail, they will consider whether you have committed a show cause offence and whether granting bail would present an unacceptable risk.

1. A show cause offence is a more serious offence and the presumption is that the person is not entitled to bail unless it can be demonstrated otherwise.  The court will refuse bail unless you can show the court why your detention is unjustified. If the court is satisfied that your detention would not be justified, then it determines your bail application on the basis of the unacceptable risk test.

2. The unacceptable risk test applies to the court’s determination of a bail application in relation to all offences.  It requires the court to assess whether granting bail would present an unacceptable risk. To determine this the court will need to assess several bail concerns.  Specifically, if released from custody, you will:

  • Fail to attend court, or
  • Commit another offence, or
  • Endanger the safety of victims, individuals or the community, or
  • Interfere with witnesses or evidence.

These are known as bail concerns and the court may address the presence of any of these concerns through the use of bail conditions. If the court decides that granting bail would still present an unacceptable risk even if conditions are imposed, bail will be refused.

Bail Conditions

The Bail Act 2013 (NSW) provides for several bail conditions that may be imposed on an accused person.  According to section 20A of the Bail Act 2013 (NSW) bail conditions may only be imposed if the bail authority is satisfied that the bail condition is

  • Reasonably necessary to address a bail concern, and
  • Reasonable and proportionate to the offence for which bail is granted, and
  • Appropriate to the bail concern in relation to which it is imposed, and
  • No more onerous than necessary to address the bail concern in relation to which it is imposed, and
  • It is reasonably practicable for the accused person to comply with the bail condition, and
  • There are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

The Determination of Bail Conditions

What bail conditions will be imposed will depend on the circumstances of your offence and arrest. For example, bail conditions can impose:

  • Conduct requirements: these conditions control what a person can and cannot do. For example, a conduct requirement may compel you to comply with a curfew or surrender your passport.
  • Security requirements: these conditions may require you or another person to agree to pay money to the court if you fail to attend court.
  • Enforcement conditions: these conditions function in order to monitor or enforce compliance with another bail condition.
  • Character acknowledgements: these conditions may require people who know you to provide evidence that they regard you as a responsible person who will comply with bail requirements.

Varying Bail Conditions

Bail conditions that have been imposed on a person may be varied via a variation application set out in Section 51 Bail Act 2013 (NSW).  Variation applications can only be made by ‘interested persons’.  The people who are defined as interested persons are outlined in section 51 (3) of the Bail Act 2013, which include

  • The accused person granted bail.
  • The prosecutor in proceedings for the offence.
  • The complainant for a domestic violence offence.
  • The person for whose protection an order is or would be made, under the Crimes (Domestic and Personal Violence) Act 2007.
  • The Attorney General.

Why BSM Lawyers?

Brander Smith McKnight’s team of highly experienced criminal defence lawyers are here to advise and apply for bail applications and varying bail conditions.  Our team regularly represents clients who are in jail and require a bail application or varying of conditions.  We will vigorously advocate for you and fight for your rights.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.


chevronWhat happens if I breach bail conditions?

If you breach one of your bail conditions, you could be potentially arrested and brought before the court. This may result in the varying of your bail decision and could result in your bail entitlements being revoked or in new and harsher bail conditions being imposed.

chevronHow long will I have bail?

Generally, if you have been released on bail you will have bail until your matter concludes.

chevronWhat is a surety?

A surety is a sum of money paid by someone as a condition of a release on bail. Providing a surety is a way of guaranteeing you will attend court if you are released on bail. If you do not attend court, the surety money will be forfeited to the court.

Brander Smith McKnight Lawyers is conveniently located in Sutherland, Parramatta, Sydney CBD and Wollongong.

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