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A Family or Friend Didn't Get Bail.. What Can Be Done?

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If you are arrested by the Police and you are charged, the Police will decide whether to release you on bail or not. If you are released on bail you will be subjected to bail conditions that will usually include that you will attend Court and that you will not commit any further offences. Other conditions can be included. 

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It becomes stressful and problematic when Police refuse to grant bail. When this occurs, a person will have to go before a Court and ask for bail. Depending on the day of time, this can often result in spending the night in a Police cell, or a Police remand centre, awaiting to appear before a Court the next morning.

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For most persons, the Court will be determining if the accused poses an "unacceptable risk" as section 20 of the Bail Act NSW 2013 states that an accused person is to be released if they pose no unacceptable risks. 

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An unacceptable risk is defined in section 19(2) as including that a person will:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, indviduals or the community or 

(d) interfere with witnesses or evidence.

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Even if one of the unacceptable risks are present, a person can still obtain bail by "mitigating" that risk through appropriate bail conditions. What is meant by that, is that if there is a risk, if a person suggests an appropriate bail condition that lessens that risk, the court may still entertain that bail condition. 

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An example of this is where the Prosecution argue that there is a risk that a person may fail to appear at Court because they are a New Zealand national with all there family in New Zealand. An appropriate bail condition to mitigate that argument/risk would be that such person surrenders their passport for the duration of the matter.

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Similarly, a person may be a repeat drug user and the Prosecution and Magistrate may be concerned about the commission of further drug related crimes. A condition imposing a restriction from all illcit drugs would be an appropriate condition.

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There is an intial additional hurdle for some bail matters that are deemed to be "show cause" matters pursuant to section 16A of the Bail Act NSW 2013.

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Section 16B sets out what constitutes a show cause offence. The list includes situations where the new offence committed are certain serious offences including offences which are punishable by life imprisonment, serious indictable offences involving sexual intercourse with a person under the age of 16 years, serious firearm offences, and serious drug supply offences. However, most commonly it also includes serious indictable offences commited by persons whilst on bail and parole. 

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In such instances, a person is required to show why their detention is not justified before proceeding to the unacceptable risk test. The Court has held that there can be multiple factors.

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Some of the reasons that have been the basis of cause being shown have included but not limited to:

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• Cases where it is unlikely the person will receive a custodial sentence; 

• The lenght of time that a person may spend in jail pending trial;

• A weak prosecution case;

• Lack of experience in custody;

• Youth of the person;

• Lack of rehabilitation in custody;

• Lack of medical treatment in custody;

• Mental illness;

• Risk of offending high but relatively minor offences;

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Bail conditions by the Court can be wide and varied and can include sureties by way of money being deposited into the court by family and friends, restrictions from drug and alcohol, non-associations orders, exclusions/restrictions from places, and much more. 

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Top Tips For Successful Bail Applications

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• The Court takes the Prosecution case as fact. Know your weaknesses and prepare to accept them so you can act on them. If you have a history of failing to attend Court, be up front about it and how you are going to convince the Court it won't happen again? If the charges are that you have repeatedly assaulted your partner in the family home, it is unreaslistic to expect to be allowed to go home. Have alternative accomodation arrangements. 

• Knowing your weaknesses, be prepared to have bail conditions to meet those weaknesses. If you don't, the Court may perceive it to be a risk and deny you bail. 

• Bring in your family and friends. Bail conditions can include having a surety, a sum of money paid by someone as a deposit to ensure your compliance with your Orders. It can also be a simple character acknolwedgement. Bringing in family and friends shows that you are serious and that family and friends have skin in the game for you to comply with your orders. 

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