Bail applications or Breach of Bail
Bail and Bail Surety
In New South Wales, bail is defined as the authority to be at liberty while a criminal matter is being resolved in court. It is essentially a promise that you will attend every required court appearance and comply with any rules set by the police or the magistrate. The legislation governing these decisions is the Bail Act 2013 (NSW), which aims to provide a clear structure for deciding whether an accused person should be released or detained.
A common feature of many bail agreements is the requirement for a surety. This involves an acceptable person, often a family member or friend, agreeing to forfeit a specific amount of money if you fail to appear in court. This financial guarantee acts as an incentive to ensure you comply with your obligations. The court will carefully assess whether the person offering the surety is suitable and whether they have the financial means to cover the amount promised.
The two step bail test
The New South Wales bail system operates on a rigorous two step process that determines whether you are eligible for release. For certain serious offences, such as those involving murder, serious drug supply, or crimes committed while already on bail, the first hurdle is the show cause requirement. This means you must demonstrate to the court why your continued detention is not justified. Factors that can help show cause include significant delays in the court process, a weak prosecution case, or personal circumstances like health issues or family responsibilities.
If you successfully show cause, or if your offence does not fall into that category, the court then applies the unacceptable risk test. The magistrate must identify whether there are any bail concerns, such as the risk that you will fail to appear, commit further serious offences, or interfere with witnesses. If the court believes these risks are unacceptable and cannot be managed by specific conditions, bail must be refused.
Bail conditions
When the court decides to grant bail, it will often impose a set of conditions designed to mitigate any identified risks. These conditions must be reasonable and proportionate to the concerns raised by the prosecution. Common requirements include residential conditions that specify where you must live, reporting conditions that require you to check in at a police station, and non contact orders that prevent you from communicating with certain people involved in the case.
Other more restrictive conditions may include a daily curfew or the requirement to surrender your passport to prevent international travel. In recent years, the use of electronic monitoring has become more common, particularly for serious matters or domestic violence cases where the court requires real time tracking of your location. It is vital that you fully understand every condition of your bail, as any misunderstanding can lead to an accidental breach and a return to custody.
Breach of Bail
Unlike in some other states, breaching a bail condition in New South Wales is not a standalone criminal offence. However, it is treated with extreme seriousness as a violation of the court's trust. If the police believe you have failed to comply with a condition, they have the power to arrest you immediately and bring you back before a magistrate for a bail review. The court may then decide to revoke your bail entirely, meaning you will remain in custody until your case is finished.
While the breach itself may not result in a new charge, failing to appear in court when required is a separate and serious criminal offence under section 79 of the Bail Act. This can lead to a prison sentence of up to three years and will significantly damage your chances of being granted bail for any future matters. If your bail is revoked or if you are refused bail at your first appearance, you are generally limited by section 74 of the Act, which prevents you from making another application in the same court unless you can show new facts or a change in circumstances.
Bail Application Lawyer
David is well respected by his peers for his thorough understanding of criminal, traffic law and family law and his ability to provide clear, concise legal advice during the bail application process. He is available to appear in all State and Federal Courts in Australia, whether Local, Magistrates, District or Supreme Court and is happy to represent clients Australia-wide and fight to ensure that your bail application is granted.
If you need assistance with applying for bail or dealing with a breach of bail charge, contact David Cole for expert legal representation and advice.
David Cole is a devoted criminal lawyer & barrister with ample practical experience in Court. Contact David Cole on (07) 5630 4000.
David represents his clients all throughout Australia. He is also available for representation and counsel throughout Queensland and NSW in the Tweed Heads, Byron Bay, Sunshine Coast, Cairns, Townsville, Mackay, Maryborough, Gladstone and Proserpine regions.
To avoid tough penalties & jail you need an experienced Lawyer to defend you. For the best possible outcome in your case, speak with David. Use the contact form or call now on 0407 322 955. (Available 24/7)Have you been charged?