A Guide to Bail in NSW – Criminal Lawyers Sydney George Sten & Co has over 50 years experience in Criminal Law. We act for individuals who are in custody and need the skill of an experienced Bail Application Lawyer in order to give you back your freedom. Our Bail Lawyers do not post bail on your behalf. A guarantor will be nominated, this could be a family member or a friend, who will act as your guarantor and post the financial side of your bail application. Our Bail Lawyers appear daily in the Local Courts, District Courts and Supreme Court.

Bail refers to an accused person being released into the community or the authority to be at liberty. Persons released on bail give an undertaking to return to court to face the allegation that they have committed a crime. Bail may be granted by the police, by an authorised justice or by judicial officers (a judge or magistrate).

Whether bail is granted or not will depend on the facts of each matter. It is essential to speak with a criminal defence lawyer if you have been charged with an offence. Obtaining bail can be complicated and often requires strong and specific argument from an experienced defence lawyer to convince the court an accused person is not a risk to the community, will not commit any offences while on bail or interfere with any witnesses and will return to their next court date.

A Guide To Bail – Police Bail

When an accused has been taken into custody by the police, the police are required to make a “bail decision”. This may be to:

• Release the accused to attend court at a later date with or without bail
• Release the accused to attend court at a later date without bail or
• Refuse bail until the accused is brought to court – this should be as soon as practicable

The accused should speak with a criminal defence lawyer as soon as possible. A criminal defence lawyer can advise the accused at the police station or over the phone. The lawyer can also discuss with the responsible officer the potential conditions, which may be imposed, on the accused if he or she is granted bail. The lawyer may also request a review of a bail decision by a senior police officer – this must be done at the request of the accused.

A Guide To Bail – Court Procedure and Bail Applications- Bail Act 2013 (NSW)

There are three categories of court bail applications:

• a release application made by an accused person: s 49
• a detention application made by the prosecution: s 50 or
• a variation application, which may be made by an “interested person”: s 51. An “interested person” may be either the accused, the prosecution, the complainant in a domestic violence offence or a person for whose protection an order is or would be made in an application under the Crimes (Domestic and personal Violence) Act 2007 (NSW). 

Where a person is refused bail by the police following an arrest, or ‘police bail’, they are to be brought before the court or authorised justice as soon as practicable. The defendant will be held in a cell and it is common for the police to take defendants in custody from the cells to court just before 10 am. It is essential at this point to have retained a criminal defence lawyer to ensure a proper bail application is made to the court.

Your criminal defence lawyer will seek instructions from you and may ask the court to call the matter later that day once instructions have been obtained. The procedure is then generally as follows.

• The accused is brought into court in custody, sometimes handcuffed, and placed in the dock.
• The prosecutor or defence lawyer will then mention the matter. The accused then stands and is formally charged with the relevant offence.
• A copy of the Court Attendance Notice is then handed to the accused or defence lawyer.
• The defence lawyer then makes an application for bail (a release application) or adjournment, or both.
• The magistrate will ask the prosecution what the attitude or view is in relation to bail. If the prosecution provides that bail is opposed or that bail should be subject to conditions, the magistrate will ask the prosecution to present its argument as to why.
• Following the details provided by the prosecution, the magistrate would ask the defence lawyer to show why bail should be granted.

Depending on the particular offence and facts of the matter (e.g a show cause offence), there are specific legal elements, which must be argued to the court, and the court must be convinced of these elements for bail to be granted. The criminal defence lawyer will generally need to convince the court that the defendant is not a risk to the community will return to their next court date and will not interfere with any relevant witnesses.

If bail is granted, it may include a condition that the accused or a bail guarantor(s) enter into an agreement to forfeit an amount of money nominated by the court in the event the accused fails to appear before the court in accordance with their bail acknowledgement. The accused and/or bail guarantor(s) will need to attend the court registry to sign the agreement. An “agreement and deposit of cash” is signed by the accused or the bail guarantor and the cash is deposited with the clerk of the Local Court.

If you have been charged with an offence, it is vital to speak with a Bail Lawyer to ensure your matter is properly processed by both the police and the court. Without a Bail Lawyer, you risk being held on remand or having bail refused inappropriately and your liberty is at stake. Contact Criminal Lawyers Sydney George Sten & Co for further information and speak with an expert Bail Application Lawyer. We do not issue funds to post bail your guarantor does this. We are available 24 hours a day, 7 days a week and can be contacted on (02) 9261 8640 during business hours or 0412 423 569 outside of business hours. We may also be contacted via email at [email protected].