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Once you are charged by police, the custody manager needs to determine whether to release you on conditional bail or refuse bail and hold you in custody.  Section 44 of the Bail Act 2013 states that a police officer with the ranking of sergeant or higher must make a decision as to bail as soon as reasonably practicable after an accused in police custody has been charged with an offence. The sergeant or custody manager can do either of the following:

  • release you without bail

  • grant bail (with or without the imposition of bail conditions), or

  • refuse bail.

What happens if you are charged by police and refused release from custody?

If police identifiy bail concerns and consider there is an unacceptable risk to the victim and community, it is likely that you will be held in custody and you will need to apply for bail in front of a Magistrate. If you do not receive police bail, a police officer must bring you before a Court as soon as practicable for a Magistrate to hear your matter or decide whether to grant you bail until a further appearance in Court. This is called ‘Court bail’.

If you are charged with a show cause offence, the burden is on you (or your lawyer representing you) to give the Court good reason why you should be released on bail. If you are refused bail in the Local Court, you should seek legal advice about making a further bail application to the Supreme Court of NSW. Being refused bail until your criminal matter has been finalised could mean that you are detained in prison on remand for months, and possibly years.

What are “Show Cause” offences?

Section 16B of the Bail Act 2013 (NSW) lists “show cause” offences. The list includes:

  • an offence punishable by imprisonment for life: s 16B(1)(a)

  • a serious indictable offence that involves an intent to have sexual intercourse with a person under 16 years old by a person aged 18 years or older: s 16B(1)(b)(i), (ii)

  • a serious personal violence offence as defined in s 16B(3), or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence: s 16B(1)(c)

  • certain serious indictable offences under Parts 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 involving the use of a firearm, indictable offences involving the unlawful possession of a pistol or prohibited firearm in a public place, or serious indictable offences in the Firearms Act involving the acquisition, supply, manufacture

  • or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm: s 16B(1)(d)(i), (ii), (iii)

  • a serious indictable or indictable offences involving a military style weapon under Parts 3 or 3A Crimes Act 1900 or under the Weapons Prohibition Act 1998: s 16B(1)(e)(i), (ii), (iii)

  • an offence under the Drug Misuse and Trafficking Act 1985 that involves a commercial quantity of a prohibited drug or plant: s 16B(1)(f)

  • an offence under Part 9.1 of the Commonwealth Criminal Code that involves a commercial quantity of a serious drug: s 16B(1)(g)

  • a serious indictable offence that is committed by an accused person while on bail or parole — in either case, whether granted in NSW or another jurisdiction: s 16B(1)(h)(i), (ii)

  • an indictable offence or an offence concerning compliance with a supervision order: s 16B(1)(i)

  • a serious indictable offence of attempting to commit an offence mentioned in s 16B(1)(j)

  • a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section: s 16B(1)(k).

  • a serious indictable offence committed where the person is the subject of a warrant authorising his or her arrest under the Bail Act, Part 7 of the Crimes (Administration of Sentences) Act 1999, the Criminal Procedure Act 1986, or the Crimes (Sentencing Procedure) Act 1999: s 16B(1)(l).

What are “bail concerns”?

When the custody manager or Court is determining whether or not to release you from police custody on bail conditions, it will need to have regard to bail concerns. Bail concerns include:

  • Whether the accused person will attend court when required.

  • Whether the accused is likely to commit serious offences.

  • Whether the accused is likely tp endanger any person or the community.

  • Whether the accused is likely interfere with witnesses or evidence.

In the event the Court is not concerned about any of the above issues, or if the Court thinks the concerns can be mitigated by imposing conditions on your bail, then the Court must give you bail.

Where the Court decides to grant you bail, the Court must decide what conditions to impose, if any. The conditions imposed on your bail must be only the minimum necessary to address the concerns the Court has. Pursuant to section 20A of the Bail Act 2013, the conditions must also be workable and proportionate and appropriate to the offence that you have been charged with and the concerns the court has.

What “bail conditions” can the Court impose?

There are four categories of bail conditions the Court may impose as part of your release from police custody:

  1. Conduct Requirements.

  2. Security Requirements.

  3. Character Acknowledgements.

  4. Enforcement Conditions.

Conduct requirements are conditions that direct you to do something or refrain from doing something. Examples of conduct requirements include:

  • Reporting to a police every day.

  • Residing at a specific address.

  • Surrendering your passport or other travel documents.

  • Not associate with specific people.

  • Not go within a certain distance of a specific place.

  • Obey a curfew.

  • Abstain from consuming alcohol or non-prescription drugs.

  • Complying with the terms of your AVO.

Security requirements as a bail condition require you or another person to provide a “security” to the Court. This means agreeing to pay money if you do not attend Court when required. Sometimes the money must be directly deposited with the Court before you can be released on bail and this is considered a “pre-release condition”. Rather than money, the Court can also acept property as security for your bail provided there is evidence of its value and it is capable of being offered as security for your release.

A person who knows you very well can provide the Court with a “character acknowledgement” as a bail condition. Character acknowledgments are another type of bail condition requiring a person of good character to sign a form expressing they believe you are a responsible person who will obey your bail conditions. At the very least, the character acknowledgement should address the following details:

  • Who the person is? What is there age, occupation and relationship to you?

  • How long they have known you?

  • Their awareness of your criminal charge.

  • Reasons why he or she says you are a responsible person and they are confident you will comply with the bail conditions imposed by the Court.

When the Court is of the view that “conduct requirements” are not enough to address the bail concerns, the Court may impose an “enforcement condition”. An enforcement condition is a type of condition that ensures your compliance with one of the other bail conditions. For example, one of your bail conditions might require you to “answer the door for police within 5 minutes of them ringing your door bell or knocking at your door”, or “submitting to a random chain of custody urinalysis drug test when requested by police”.

If your relative, partner, friend or yourself are refused bail and held in police custody, please seek immediate legal advice and assistance. At KF Lawyers, we can arrange for appearances the next morning your matter is listed before a Magistrate if you are held in custody overnight. Please do not hesitate calling Katrina if you are in need of assistance for a bail application.


Varying your bail

What do you do if you need to change your bail conditions for work, a booked holiday, change of residence, or planned surgery? Bail conditions can be onerous and difficult to comply with if you have a curfew, reporting conditions and supervision conditions. There may be occasions when you need to travel for work or for a family holiday, or you are required to undergo surgery. Your bail conditions may be varied by an application to the Court in which your matter is being heard to help you avoid breaching the conditions. If you are aware of an upcoming situation that may prevent you from complying with your bail conditions, it is important for you to obtain legal advice and consider applying for a bail variation.


Breaching your bail

If you fail to report to your local police station on time, or arrive home late outside of your curfew hours, you could be held accountable for a breach of your bail conditions. Police may arrest  you and bring you before a Court in relation to a serious breach of your bail, particularly if you had no reasonable excuse. In situations where the breach is minor and not serious, police may issue you with a warning and not arrest you. A Court dealing with your breach of bail may not give you bail again and if you had a security condition as part of your bail, you may have lost a signifcant amount of money.

It is important that you comply with your bail conditions and obtain legal advice about allegations of a breach of your bail.

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