Bail Applications

Bail means that a person who has been charged with an offence may, before the matter is finally determined, be released from custody on certain conditions, on the promise that they will take part in the later proceedings as required by the court or police. At its heart, it is a question of whether the person can safely and reliably remain in the community while the matter awaits hearing.

The court will usually focus on several practical questions: whether the person will attend court on time, whether they might reoffend while on bail, whether they might interfere with witnesses or evidence, and whether they would pose a risk to the safety of a victim, other individuals or the community.

Bail can be decided by different authorities at different stages.

After police make an arrest and lay charges, police may grant police bail directly. If police consider that the matter carries a lower risk, or that the risk can be managed through conditions, the person may be released from the police station and later attend court as required.

If police refuse bail, the person is usually kept in custody and brought before the court as soon as possible. The court will then hear the bail application, with a magistrate or judge deciding whether to grant release.

For family members, this stage is usually very urgent. Many bail applications require, within a short time, preparation of an address, a surety, proof of employment, details of family circumstances, medical material, arrangements for drug rehabilitation or psychological treatment, and other material capable of addressing the court’s concerns.

Some more serious matters may fall within the “show cause” category. In these matters, the applicant must first show the court why their continued detention is not justified. If this step does not persuade the court, the bail application may fail outright.

“Show cause” usually arises in more serious charges, such as certain serious violence, sexual offences, major drug matters, matters involving weapons, or other serious indictable offences. Whether a particular matter falls within this category must be assessed according to the charge and the relevant law.

It is important to note that “show cause” does not necessarily require the matter to involve extraordinary or unusual circumstances. The court may weigh a number of factors together, such as the strength of the evidence, whether it is the person’s first time in custody, their age, state of health, family responsibilities, work or study situation, the need to prepare the matter in the community, and the expected time awaiting hearing.

When deciding whether to grant bail, the court assesses whether there are any bail concerns in the matter. Common concerns include:

whether the person might interfere with witnesses, evidence or the course of justice.

The court does not look only at the name of the charge, nor does it rely only on the person’s promises. The court will usually take into account the seriousness of the charge, the police material, the strength of the case, prior record, whether the person has previously breached a court order, family and community ties, a fixed address, work or study situation, and whether suitable bail conditions are available.

If the court considers that these concerns can be managed through conditions, bail may be granted. If the court considers that the risk has reached an unacceptable level, bail may be refused.

“Unacceptable risk” is the central question in a bail application. The court does not require that there be no risk at all. In a criminal matter, there is in theory always some risk whenever a person is released. The question is whether that risk is so high that the court cannot accept it, and whether it can be reduced to an acceptable level through bail conditions. In assessing “unacceptable risk”, the bail concerns are also closely connected. For example:

if the court is concerned that the person will not attend court, it may consider a fixed address, regular reporting to a police station, surrendering a passport or providing a surety
if the court is concerned that the person will contact witnesses, it may consider prohibiting contact with particular people or prohibiting attendance at particular places
if the court is concerned about further offending by the accused and about drug- or alcohol-related risk, it may consider testing, treatment or reporting conditions.
In a bail application, an effective approach is to propose specific, enforceable conditions that directly address the concerns the court may have.

A bail application is usually under significant time pressure, but the scope and strength of the material prepared directly affects the outcome. Depending on the circumstances of the matter, it may be necessary to prepare:

where there is a risk of reoffending, enforceable supervision, treatment or reporting arrangements to be proposed.

A bail application must be prepared around the risks the court may be concerned about. Every piece of material should serve one purpose: to show that, if released, the person will attend court on time and that the relevant risks can be reasonably managed.

If the court decides to grant bail, it will usually attach some conditions. The purpose of bail conditions is to reduce the court’s concerns about attendance at court, reoffending, community safety or interference with evidence.

Common bail conditions include:

in some matters, paying or undertaking to forfeit a sum of money.

More bail conditions are not necessarily better. Conditions should relate to the risks the court is concerned about and must be realistic and workable. If conditions are too strict, the person may easily breach them inadvertently later on; if they are not specific enough, they may fail to persuade the court to release the person.

In some bail applications, the court may require a suitable person to provide a guarantee, usually called a surety or “acceptable person”. The role of a surety is to indicate to the court that they are willing to support the person in complying with their bail conditions and, in some cases, to promise to forfeit a sum of money if the person does not attend court as required.

Not every relative or friend is suitable to act as a surety. The court will usually consider the surety’s relationship with the person, how long they have known each other, whether they understand the charges, whether they are able to supervise or support the person, whether they have a criminal record, whether they have any pending charges, and whether their financial means match the amount of the guarantee.

If a family member wishes to act as a surety, they should prepare in advance proof of identity, proof of income or assets, an explanation of their relationship with the person, and an explanation of why they believe the person will comply with their bail conditions.

Once bail has been granted, all conditions must be strictly complied with.

If bail conditions are breached, police may arrest the person and bring them back before the court. The court may also reassess whether to continue allowing the person to remain in the community. In serious cases, breaching bail conditions may lead to bail being revoked, a return to custody, and even fresh criminal issues.

Many breaches of bail conditions are not the result of the person deliberately evading the court, but of not fully understanding the conditions. For example, being unclear about which people may not be contacted, how curfew hours are calculated, whether the person may temporarily leave their address, or when they need to report to the police station.

If existing bail conditions can no longer be complied with — for example because of moving house, a change in working hours, a family emergency or a change in treatment arrangements — the conditions should generally not be breached on one’s own initiative; instead, legal advice should be sought as soon as possible to assess whether an application can be made to vary the bail conditions.

Yes, but the same application cannot simply be repeated.

If bail is refused, whether a further application can be made later depends on whether there are new facts, a change in circumstances or new material. For example, a suitable address having been found, a surety being ready, treatment arrangements having been confirmed, a change in the police material, or developments in the matter affecting the justification for continued detention.

In some matters, it may also be necessary to make a bail application to a higher court. The particular path depends on the court in which the matter sits, the nature of the charge, the reasons bail was previously refused, and whether there is now new material capable of supporting the application.

NS Legal can assist clients with bail applications and related criminal proceedings, including police bail, court bail, further applications after bail has been refused, variation of bail conditions, and responding to a breach of bail conditions.

We can assist clients to:

continue to provide criminal defence and court representation in the later court proceedings in the matter.

If you or a family member has already been arrested by police, has been refused police bail, or is about to attend a court bail application, we recommend obtaining legal advice as soon as possible. Bail applications are usually under tight time pressure, and the earlier the material is prepared, the better the chance of putting a complete and well-targeted application before the court.