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ARREST BAIL

ARREST BAIL & COURT

Police bail

Bail may be granted by a police officer who is present at the station and is a sergeant or above the rank of sergeant, or an officer acting in this capacity. The police will determine whether to grant bail after arresting and charging you.

If police bail is not granted the police must, as soon as practicable, bring you before a court so that a court can make a decision whether to grant you bail.

Conditions that are always imposed when bail is granted

  • An undertaking to appear before court
  • You will not be released on bail unless you agree, in writing, to appear before the court on the day, at the time and place specified in a notice given or sent to you.
  • An undertaking to notify the Court of any change in residential address

Conditions that may be imposed when bail is granted

These include an agreement:

  • That you are to reside at a certain address.
  • That you observe requirements as to your conduct while on bail, other than financial requirements. This may include restrictions on you associating with specified persons or visiting specified places.
  • That one or more acceptable person(s) acknowledge that they are acquainted with you and regard you as responsible and likely to comply with the bail undertaking.
  • That you and/or one or more acceptable person(s) will forfeit an amount of money if you fail to comply with your bail undertaking.
  • That you surrender any passport held by you. Bail will not usually be granted to a person accused of an offence occasioning death unless you surrender their passport.

Cash bail

A court has the power to grant you bail on the condition that you or an acceptable person deposits cash or security. If a court makes an order that the cash or security be deposited, the money will have to be handed in to a court, jail or a police station.

The court will want to know that the money or security belongs to you and hasn't been given to you by someone else. This will mean that you will have to show the court where the money or security came from. A bank statement and a bank withdrawal receipt is usually enough for cash deposits.

The money or the security will remain with the court, jail or police station until the bail remains in force. If you do not appear or comply with terms of your bail, the money or security can be forfeited. If this occurs, the person depositing the cash or security can apply to the court for an order that the money or security not be forfeited but returned to that person.

How much cash bail is enough?

We are commonly asked: " How much money should I put up for bail?" The answer is that it is up to the judge or magistrate as to what they believe is acceptable. There is no set amount of money that will secure bail.

It has been our experience that $20,000 has been sufficient to secure bail for a serious offence but not enough for a similar offence. Obviously the larger the amount of cash/security deposited the more likely bail is to be granted.

Many people would prefer to use their house or other property as security which means that their cash is not tied up and it allows them to deposit a larger amount of bail.

Depositing property as bail is a more complex process than cash as you will need to prove its value, the amount of equity you hold in the property and you may also need the approval of any lender to use the property as security.

Security bail

The court has the power to grant bail on the condition that you or an acceptable person agree to forfeit an amount of cash or security if you fail to comply with your bail (without lodging security). In this case, you don't have to hand the money or security over, but it will have to be handed over if you don't comply with your bail.

This is a less secure condition than cash bail and for this reason is used far less often in more serious cases.

Bail conditions relating to treatment and rehabilitation

If you're over the age of 18, the court may impose conditions on you regarding assessment, treatment, rehabilitation or participation in an intervention program. If the court believes that you would benefit from such a condition being imposed, it may require as part of the bail undertaking that:

  • You be assessed for participation in an intervention, treatment or rehabilitation program.
  • You participate in an intervention or treatment program and comply with any plan arising out of the program.

Likelihood of bail

Whether you are likely to be granted bail depends largely upon the seriousness of the offence charged and your past offending behaviour, if any. The Bail Act grades offences and offenders into certain categories. The category you are placed in will affect your chances of getting bail.

There are 5 categories of offences / offenders. The Bail Act refers to these as presumptions. The 5 presumptions are:

  • A right to bail
  • A presumption in favour of bail - You can expect to get bail
  • No presumption in favour of bail - There is no expectation either way
  • A presumption against bail - You can expect not to get bail
  • Bail only granted in exceptional circumstances

The bail laws are complex. We have tried to simplify the content on this page so that people can understand the basic principles. However, it may be, that you are unable to identify which presumption applies to your case. If this is the case please call Armstrong Legal on 9261 4555 and we will let you know.

A Right to be released on bail for minor offences

You have the right to be released on bail if:

  • You were charged with a minor offence that is not punishable by a sentence of imprisonment (except in default of payment of a fine).
  • You were charged with an offence under the Summary Offences Act 1988 (NSW).
  • the proceedings are for the breach of a good behavior bond or the revocation of a community service order.

However, you do not have this right if:

  • You have failed to appear at court.
  • You have previously failed to comply with a bail undertaking or bail condition imposed in respect of the offence. Instead, a presumption in favour of bail (see below) will apply.
  • You are incapacitated by intoxication, injury or use of a drug, or are otherwise in danger of physical injury or in need of physical protection.
  • You stand convicted of the offence or your conviction for the offence has been stayed.
  • You are in custody serving a sentence in connection with some other offence and are likely to remain in custody for a longer period than that for which bail in connection with the new offence would be granted.

A Presumption in favour of bail

Where there is a presumption in favour of bail, it is expected that bail will be granted, unless you have been convicted of the offence by a court or the court is satisfied that certain criteria under the Bail Act 1978 (NSW) justify refusing to grant bail.

The presumption in favour of bail applies to all offences except the specific circumstances outlined below. It also applies where a person has not been entitled to the right to release on bail for a minor matter merely because they have previously failed to comply with a bail undertaking imposed in respect of that offence, or because they have failed to appear in court in respect of a minor matter.

No presumption in favour of bail

The presumption in favour of bail does not apply where:

  • the right to release or presumption against bail applies.
  • you have failed to appear in court for the offence in respect of which bail is being sought, or have been convicted of the offence of not appearing in court.
  • at the time the alleged offence was committed, you were at liberty on bail, on parole, serving a sentence but not in custody, serving a sentence in custody, or subject to a good behavior bond or intervention program order.
  • you have been charged with an indictable offence and have previously been convicted of an indictable offence.
  • you have been charged with any domestic violence offence or an offence of contravening an apprehended domestic violence order (ADVO) involving violence, stalking or intimidation.
  • the court is satisfied that the accused has a history of violence (convicted of a personal violence offence within the last 10 years or of a contravention of an ADVO involving violence) or has been violent to the victim in the past.
  • you have been charged with an offence under any of the following sections:
Act Section
Crimes Act 1900 (NSW) 18, 26, 27, 28, 29, 30, 31, 33, 61J, 61JA, 61K, 66A, 66B, 78H, 86, 90A, 95, 96, 97 or 98
Drug Misuse and Trafficking Act 1985 (NSW) 25A
Where the plant or drug concerned is alleged to be at least twice the indictable quantity: 23(2), 24(1), 25(1), 26, 27, 28.
Criminal Code 1995 (Cth) 302.3, 302.4, 303.5, 303.6, 304.2, 304.3, 305.4, 305.5, 306.2, 306.3, 306.4, 307.2, 307.3, 307.6, 307.9, 307.11, 307.12, 307.13, 309.2, 309.3, 309.4, 309.7, 309.8, 309.10, 309.11, 309.12, 309.13, 309.14 or 309.15 Division 11 of Part 2.4 (attempts to commit any offence listed above)
Crimes (Criminal Organisations Control) Act 2009 (NSW) 26

Presumption against bail

Where you have been charged with one of these offences, bail will ordinarily be refused and a heavy burden rests on you to satisfy the court that bail should be granted.

The presumption against bail applies to:

Repeat property offenders

Where the person is accused of two or more serious property offences arising out of different circumstances, and bail is sought in respect of one or more of those offences, and the person has been convicted of one or more serious property offence within the last two years.

A 'serious property offence' is an offence under ss 94, 95, 96, 97, 98, 99, 106, 107, 109, 110, 111, 112, 113, 149, 154AA, 154C or 154F of the Crimes Act 1900 (NSW). It also includes attempts to commit any of these offences, and similar offences under Commonwealth law, that of another State or Territory or of another country.

Offences committed in the course of riots or other civil disturbances

Where the person is charged with an offence under s 93B of the Crimes Act 1900 (NSW) or any other offence punishable by two years imprisonment that is alleged to have been committed in the course of the accused participating in a large-scale public disorder or in connection with the exercise of police powers to prevent or control such a disorder.

Persons on lifetime parole who commit offences carrying prison terms

Where the person is charged with an offence for which a penalty of imprisonment may be imposed and the person is serving a sentence of life imprisonment and is on parole.

Persons in breach of extended or interim supervision orders

Where the person is charged with an offence under s 12 of the Crimes (Serious Sex Offenders) Act 2006 (NSW).

Certain other offences that attract a presumption against bail

Act Section
Drug Misuse and Trafficking Act 1985 (NSW) 23(1A), 23(2), 23A(2), 23A(3), 24(2), 24(2A), 25(2), 26, 27, 28,
Crimes Act 1900 (NSW) 93G, 93GA, 93H(2), 93I(2), 154D
Firearms Act 1996 (NSW) 7, 36, 50, 50A(2), 51(1A), 51(2A), 51A, 51D(2), 44A, 51B, 51BB, 62
Weapons Prohibition Act 1998 (NSW) 7, 23A(2), 23B, 25A(2)
Criminal Code 1995 (Cth) 302.2, 303.4, 304.1, 305.3, 307.1, 307.5, 307.8, 302.3, 302.4, 303.5, 303.6, 304.2, 304.3, 305.4, 305.5, 306.2, 306.3, 306.4, 307.2, 307.3, 307.6, 307.9, 307.11, 307.12, 307.13, 309.2, 309.3, 309.4, 309.7, 309.8, 309.10, 309.11, 309.12, 309.13, 309.14, 309.15
Division 11 of Part 2.4 (attempts to commit any offence listed above)
Division 101, 102 or 103

Bail granted in exceptional circumstances only

The court will grant bail only if there are exceptional circumstances if you have been charged with:

  • Murder
  • A serious personal violence offence where you have previously been convicted of a serious personal violence offence.
  • An attempt to commit the above.
  • An offence under Commonwealth, State/Territory or another country's laws that is similar to the above.

For more information contact Armstrong Legal:

Level 4 127 York Street
Sydney, NSW 2000 (Opposite the Queen Victoria Building)
Phone: (02) 9261 4555
After Hours: 0404 55 88 33

http://www.armstronglegal.com.

 

 

 

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