Applying for bail in NSW - a short guide for family members and support people
Can you imagine a situation where one of your family members gets arrested by police out of the blue? It can be a very stressful time and when its family, it’s important you can provide the best possible support. We wrote this piece to help family members better understand the process, so they can be strong and give support when they're most needed.
We cover bail, the court process and a list of questions your lawyer may ask you or the accused during the process.
So where do we begin?
Police, bail and the Local Court
If you or a family member are arrested by police and charged with an offence, the police will decide whether or not bail will be granted until your court date.
The police need to consider two factors when deciding whether to grant bail. If the police decide not to grant bail, your family member will be brought before a magistrate as soon as practicable. This may be the same day of the arrest, or it may be the following day depending on the circumstances.
If your family member wishes to make a release application in the Local Court (so they can get bail), the court will consider the same two factors as police which are:
Whether the offence they are charged with is a ‘show cause’ offence; and
Whether the ‘bail concerns’ can be adequately addressed.
So what does that all mean?
“Show Cause” Offence
Depending on the type of offence charged or if your family member was already on bail or parole for another offence when arrested, they may need to “show cause”. Many serious offences including drug importation, or offences involving sex, violence or firearms are “show cause” offences.
As the applicant, your family member will need to show cause as to why their detention in custody is not justified. There are many and varied reasons that the court would consider as satisfying this test. It depends entirely on their individual circumstances and your lawyer will advise you accordingly.
After deciding whether they have been able to show cause, the court must then consider “bail concerns”, which are:
That they will attend court when required
Whether or not it is likely that they will commit any serious offence if they were released on bail
Whether or not they will endanger any person in the community and
Whether or not they will interfere with witnesses or evidence
If the court has no concerns with these issues or if the court thinks that the concerns can be overcome by imposing conditions on their bail, the court must give them bail.
But what if the court decides to impose conditions?
The court may impose conditions like:
The place where you will live
Reporting to police
Not to associate with particular people, or
A surety or undertaking to forfeit money.
One chance for a bail application
In most cases, there is only one opportunity to make a bail application in the Local Court, which is why it is important to speak with an experienced criminal defence lawyer. There are four exceptions to this general rule:
Your family member was not represented by a lawyer for the first time they asked for bail
There is new information relevant to the bail application that was not presented to the court the first time they asked for bail;
There are new circumstances relevant to bail since the first time they asked for bail; or
If they are under 18 years of age, and a bail application was made the first time they were at court for the same offence.
Questions the lawyer might ask
If your family member wants to make a release application, their lawyer might ask them and you for the following information:
Where they will reside if released on bail;
Evidence of current employment or proposed employment;
Whether a family member or friend would be able to provide money or other security like the deeds to their home to secure their release;
Evidence about the care of children or other family responsibilities;
Any health issues they have; and
Whether a friend or family member would be willing to give a guarantee to the court that they would attend court if released.
Supreme Court Bail
If they make a release application in the Local Court and the magistrate decides not to grant bail, they have a right to make an application in the Supreme Court. The Court will have regard to the same factors as outlined above and may hear additional evidence to satisfy the bail concerns.
It is important that your family member, of you on their behalf, speak with an experienced criminal defence lawyer early in the proceedings to get comprehensive advice about the prospects of a release application and what material, might be required to satisfy the court.
If you have a family member that has been arrested and need a lawyer please don’t hesitate to get in touch with us at email@example.com at 0455 039 660 or 0455 039 707.
This information is provided as a general guide only and does not constitute legal advice.