In NSW, generally speaking, there are 4 reasons *1 why police and courts can refuse to grant bail to a defendant:
- There is a risk the person will commit further serious offences while on bail;
- The community or a particular victim(s) will be endangered if the person is on bail;
- If bailed, there is a risk the person will fail to appear at court to answer the substantive charges;
- While on bail, there is a risk the person will interfere with Prosecution witnesses.
In short, if bail is opposed by police, it’s for one of these 4 reasons.
When we make a bail application (or “release application”), the defence lawyer is providing a suggested list of conditions to the court, that we hope will provide comfort to the court that these risks are mitigated – that is, we propose a list of bail conditions that we say alleviate or minimise the above risks, that the prosecutor has identified.
Some of the standard bail Conditions include:
- Residence Condition – where the person will live while on bail.
- Conduct Conditions – things the defendant must do, or is not allowed to do (like drink alcohol or take illicit drugs); places they are not allowed to go while on bail; a curfew, such that the person will not go out between certain hours; certain people with whom the person is not allowed to communicate.
- Reporting Conditions – that the defendant will report to the police station.
- A Surety – being an amount of money that has to be paid if the person breaches their bail.
- A Character Acknowledgement – by someone other than the defendant, who the court considers to be acceptable, who signs that they know the defendant and believe the defendant will comply with bail conditions.
- reasonable or necessary Enforcement Conditions – that is, conditions that can be imposed to check for compliance (for example, if the defendant has a conduct condition, banning them from drinking alcohol or taking drugs while on bail, an enforcement condition might be that the police can test the defendant for drugs or alcohol – to ensure compliance with the Conduct Condition)
So let me give you a few examples of how these bail conditions might work together……
Example One:
Background: Mary (35yrs old) and Peter have been together 10 yrs. Police are called to a domestic incident in Lennox Head, where Mary allegedly stabbed Peter, at their home, during an alcohol-fuelled argument. From her record, I can see Mary was convicted of violently assaulting Peter last year, as well as a few other convictions in the past 5 years for behaving offensively in public, an assault at the pub, and high-range drink-driving (for which she missed court twice). (I am not going to canvass the charges Mary might face, or any defences available to her, just how she might approach a bail application.).
In talking with Mary, it seems all her offending happens when she’s been drinking alcohol.
A major hurdle for Mary is that stabbing her partner is obviously a very serious offence and if convicted she may face a gaol sentence.
Why bail is opposed: We start by looking at the four reasons for refusing bail…. In Mary’s case, it’s likely the Prosecution will argue that bail should be refused because (i) Peter cannot be protected if Mary is allowed back in the community, and (ii) Mary’s record indicates that Mary is a danger to other people in the wider community; and (iii) given her recent criminal history, that if she is granted bail, Mary will commit further serious offences, particularly if she drinks alcohol, and (iv) Mary has twice failed to appear at court, so there’s a risk she might flee, especially when she knows she might go to gaol if convicted for this offence.
What conditions can Mary’s defence lawyer suggest, to minimise the risks the prosecution have identified in opposing her application for bail?:
- a condition that she reside somewhere other than the home she shares with Peter, and this address is provided to the court.
- a condition that she not go near or approach Peter – this conduct condition will give Peter protection from her;
- a condition that she not consume any alcohol while on bail – this will protect the community and Peter, because it seems there’s a link between her offending and drinking alcohol;
- a reporting condition, that she report to police every Monday, Wednesday and Friday while on bail – this will ensure she stays in a particular area while on bail;
- an enforcement condition, having the effect that police can test her for alcohol (likely to occur when she reports to police while on bail);
- a conduct condition that she comply with any AVO’s to protect Peter;
- a condition that she be of good behaviour, not commit any further offences and attend at court to face the charges for allegedly stabbing Peter;
If the Magistrate believes these will mitigate any risks of Mary offending while on bail, them Mary will be granted conditional bail.
Example Two:
Background: 23yr old Tim was arrested at 1am, at a Lennox Head park, after police investigated reports of 3 males in the park, taking drugs. Police claim that when they approached, they witnessed Tim attempt to conceal something down his jeans, before running from them. When caught, Tim is alleged to have kicked and punched one of the officers and spat at another. When searched, police claim they found 8 grams of meth, in 16 bags, each containing ½ a gram. They also found $5,000 in cash in his pocket. The other 2 males told police they were there to score drugs from Tim. Tim has an extensive criminal history relating of drug possession and supply, as well as some weapons offences.
Why bail is opposed: We start by looking at the four reasons for refusing bail…. It’s likely the Prosecution will argue that bail should be refused because (i) Tim is likely to commit further serious offences, with an extensive drug-related criminal history and the allegation he is a drug-dealer; (ii) Tim poses a risk to the community because of his links to drug supply and possession of dangerous weapons, and the way he assaulted police and resisted arrest; (iii) Tim may try and persuade the other males to change their evidence, after they have initially identified him as a drug-supplier; and they may argue (iv) Tim is a risk of failing to appear because he tried to run from police.
What conditions can Tim’s defence lawyer suggest, to minimise these risks?:
- a condition that he reside at a particular address, being a youngman, ideally with parents or relatives.
- A condition that a Character Acknowledgement to be given by an acceptable person
- A conduct condition – that he not approach, or attempt to contact the two other males involved in the incident
- Given his offending happens late at night, a curfew, prohibiting him from going outside his bail address after a certain time of day.
- A surety be offered by a relative or friend, to the effect that if Tim breaches his bail an amount of money is forfeited (or paid).
- A conduct condition – he not take any drugs (unless prescribed to him by a Doctor).
- Reporting and enforcement conditions – that Tim report to the local police station, where he may be subjected to drug testing.
- a condition that he be of good behaviour, not commit any further offences and attend at court to face the charges.
These are fairly simple demonstrations of some of the issues with bail (or release) applications – specifically the risks if bail is granted, and bail conditions to mitigate the risks.
There are a myriad of other factors that are relevant to a bail application – particularly with respect to the defendant’s personal life and circumstances, such as a person’s age, health, employment, family ties, vulnerabilities, the strength of the prosecution case, and the defendant’s history of engagement with the criminal justice system.
This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.
We service NSW, particularly the area from Coffs Harbour to Byron Bay, Ballina, Mullumbimby and Tweed Heads regions on the Far North NSW Coast.
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*1 Of course, it’s legislation, so there are a couple of extra layers – “show cause” offences, which are more serious offences, often committed when the person is already on bail, or serious personal or domestic violence offences (it’s a bit more complicated with “show cause” offences; and those very serious offences caught in a new section called “S22B offences” where the person admits, or is found guilty, of the offences.)
