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Bail in Sydney

When a person is charged with criminal offences in Sydney or elsewhere in New South Wales, they may be granted bail by the police or remanded in custody. If a person remanded in custody after charges are laid, the police must bring them to court as soon as practicable so that they can make a bail application if they wish to do so. This will occur in the Magistrates Court if the person is over 18 and the Children’s Court if they are under 18. This article deals with applying for bail in Sydney.

Unacceptable risk

The decision as to whether to grant or refuse bail to a person hinges on whether the person’s release poses an unacceptable risk.

Under section 29 of the Bail Act, a court must refuse a person bail if their release poses an unacceptable risk of:

  • the person failing to appear at court when required to do so;
  • the person committing a serious offence;
  • the person endangering the safety of victims or other individuals;
  • the person interfering with witnesses or evidence.

The onus of proving that a person’s releases poses an unacceptable risk falls on the prosecution.

Show cause offences

A ‘show cause’ offence is an offence where the accused must show cause why they should not be remanded. This means that instead of the burden falling on the prosecution to show why the person poses an unacceptable risk, the burden is on the defence to show why they should be granted bail.

The show cause requirement only applies to adults charged with show cause offences. A juvenile does not have to show cause why they should be granted bail.

There is a two-step process for determining whether bail should be granted in a show cause matter. The first step is to show cause why the person’s continuing detention is not justified. This may be because being in custody would be harder for them than for the average person, because of the strength of the case against them or because of the likely penalty if they were found guilty. The second step is to assess whether the person’s release poses an unacceptable risk and whether there are conditions that can be imposed that mitigate the risk.

Show cause offences include all offences that carry a maximum penalty of life imprisonment, serious indictable offences involving a weapon and offences involving sexual intercourse with a child under 16.  

Bail conditions         

In some situations, the court may have concerns about releasing a person into the community on bail, but these concerns may be alleviated by the imposition of bail conditions. The conditions that are appropriate will depend on the circumstances of the person and the nature of the court’s concerns.

Conditions commonly attached to bail in Sydney include:

  • to live at a certain address;
  • not to go to certain places;
  • not to contact certain people (for example, alleged co-offender);
  • to abide by a curfew;
  • to participate in rehabilitation programs while on bail.

A court may also grant bail on condition that the person seeking bail or another person deposits a cash surety. This is money that must be handed over to the court upon the person signing their bail undertaking. If the conditions of the bail are breached, the money may be forfeited. Alternately, the court can grant a person bail with a condition that the person agree to forfeit a sum of money if they breach the conditions of their bail. When this occurs, the money does not have to be deposited upon entering the bail undertaking, but must be paid to the court if the bail conditions are breached.  

Breach of bail in Sydney

If a person breaches the terms of their bail in Sydney or elsewhere in New South Wales by failing to appear at court, they may be charged with failing to appear under section 79 of the Bail Act 2013. This offence carries a fine of up to 30 penalty unit or imprisonment for up to three years.

If a person breaches their bail in Sydney in a way that does not involve failing to appear at court, the court may deal with the breach by revoking their bail and remanding them in custody, varying the condition of their bail, or take no action.

If you require legal advice or representation in relation to bail in Sydney or in any other legal matter, please contact Go To Court Lawyers.

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Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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