If you are charged by Police for a criminal offence in NSW, you will either be released into the community with or without bail conditions by the Police, or, if the Police deny you bail at the Police station, you will be remanded in custody to apply for bail before a Court*.
*It is important to note that if you are issued with a Future Court Attendance Notice or a Field CAN, you are not subject to any bail conditions.
How do I apply for bail if it is denied at a Police Station?
You will appear before a Magistrate in the Local Court of NSW. When appearing before the Court, your lawyer will speak to you in the holding cells beforehand and take your instructions in order to make an oral application for your release into the community.
How is bail determined?
There are two tests that a Court takes into consideration when deciding whether to grant bail or to remand someone in custody. These are:
The unacceptable risk test, and
The show cause test.
Every bail application is subject to the unacceptable risk test. However, not every person is subject to the show cause bail test as it only applies to certain offences and circumstances.
Unacceptable Risk Test
Pursuant to s17 of the Bail Act 2013, before granting bail, the Court must consider if the person applying for bail poses an unacceptable risk that they will do any of the following if released into the community:
1. Fail to appear before the Court at a future date;
2. Commit further serious offences;
3. Endanger the safety of victims and the community; and
4. Interfere with witnesses or evidence.
The prosecution must prove that there is an unacceptable risk for bail to be denied. However, just because the risk may be present, if it can be mitigated by the imposition of bail conditions, then bail should be granted.
What bail conditions can a Court impose to mitigate any risks they may identify?
There are a number of conditions that a Court can impose in order to establish that an unacceptable risk can be mitigated. These conditions can require a person to:
- Live and reside at a certain address;
- Report to Police daily, or on specific days;
- Have a family member or friend post a monetary sum as surety;
- Not to enter a certain geographical location;
- Forfeit a passport;
- Abide by a curfew;
- Abstain from drugs and/or alcohol;
- Not associated with any co-accused person or certain people.
You lawyer will identify certain conditions that are appropriate to mitigate any risk.
Show Cause test
If a person is charged with a serious offence (such as murder), has been charged with large supply of prohibited drugs, has committed an offence whilst on bail or has committed any other offence outlined in Section 16 of the Bail Act, they must show cause as to why their detention is not justified. The person must first “show cause” as to why they should not be remanded in custody before submitting on the Unacceptable Risk test.
A person can establish that “cause has been shown” and their detention is not justified by establishing any of the following factors:
The strength of the Prosecution case is weak and is unlikely to prove the elements of a crime.
There would be a significant delay between the time you would serve in custody on remand until the date of your hearing/trial.
Even if found guilty, there are other alternatives to full time imprisonment, hence remand is not necessary.
Your need to be at liberty to prepare your case
Any special circumstances or vulnerability such as, youth, disabilities, caring responsibilities.
What do I do if I am seeking representation for someone who wants to apply for bail?
If you or someone you know has been arrested and denied bail by Police, it is important to contact your lawyer immediately to begin the bail application process.
Duncan & Co Lawyers are highly skilled in applying for bail and addressing any concerns and risks associated with all bail applications. Call us today 02 4910 4054 or 0401 548 443.