Bail Applications and Bail Conditions

8 December 2021 in Criminal Law

Bail Application

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.

What is the bail application process?

If you are charged with an offence and are not granted bail by the police you will need to make a bail application in the Local Court.  If the Local Court is determining 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”.

If you have committed a certain type of serious offence that is classified as a “show cause offence” 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.

The unacceptable risk test applies to the court’s determination of a bail application in relation to all offences. The unacceptable risk test 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, these are in relation to whether, 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 will be assessed by the court through reference to several other factors. 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
• The bail condition is reasonable and proportionate to the offence for which bail is granted, and
• The bail condition is appropriate to the bail concern in relation to which it is imposed, and
• The bail condition is 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 (see 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, in the case of bail granted on an application for an order under the Crimes (Domestic and Personal Violence) Act 2007.
• The Attorney General.

BSM Lawyers

Brander Smith McKnight’s team of highly experienced criminal defence lawyers are here to advise and assist you with bail applications and varying bail conditions.

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