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Bail
Introduction
This article considers the scope and purpose of bail. While the criminal law of New South Wales is used as an example, the principles that guide how (and when) bail will be granted are broadly similar in other Australian States and Territories.
What is Bail?
"Bail" is defined by the Bail Act 1978 (NSW) as an "authorisation to be at liberty ... instead of in custody". In return for freedom from being held in custody by the police prior to an initial criminal hearing (or in other circumstances, such as being in prison pending the resolution of an appeal) an individual promises in writing to appear before a Court and provide a guarantee of their appearance. Most grants of bail are conditional and it is a criminal offence for the individual to fail to appear later.
Bail may be granted by the police, or judge of an appropriate Court.
When is it Granted?
Bail is not a universal right, even if a person would be capable of complying with any typically prescribed conditions. While some minor offences carry an automatic right to a grant of bail (and other serious offences concerning, for example, commercial quantities of drugs or terrorism, contain a presumption against it) most bail decisions are governed by the following criteria:
- the probability of whether or not the person will appear in court, having regard to the person's background, community ties, any prior criminal record and circumstances of the offence;
- the interests of the person applying for bail, concerning the period of likely detention and the need for them to be free (for such matters as seeking legal advice and preparing a defence); and
- the general protection of the community and individuals (such as an alleged victim or witnesses).
Under What Conditions?
Assuming that conditional bail is granted, an individual on bail can be subject to conditions that commonly include:
- that the accused (or a suitable associate, known as a "surety") deposit security (such as a some of money) to ensure their appearance;
- that the accused (or their surety) will forfeit that security if the accused fails to appear before the Court; or
- the surrender of the accused's passport and an agreement not to attempt to leave the Court's jurisdiction.
How can I get Help to get Bail?
A lawyer is of vital help in assisting with a bail application. They may be able to recommend people who would be appropriate sureties, or to identify circumstances that support a grant of bail. Most importantly, they are an advocate and ensure that all of an accused's interests are weighed in a bail decision and that any conditions will not prove too complicated or difficult to meet. A lawyer is also vital in arranging a review of an unfavourable bail decision and helping an accused through preparations for a hearing.
