Bail is the term used to describe the legal mechanism where a person who is arrested for a crime can be released pending their trial rather than held in custody.

There are strong legal policy arguments that an accused person should be entitled to their freedom unless and until he or she is convicted. Our lawyers at City Legal Solicitors strongly defend our client's right to their freedom in making bail applications at all levels in the NSW court system and have acted in matters in a swift and urgent fashion.

In New South Wales, the Bail Act 1978 regulates the bail system. While the grant of bail is ultimately a matter for the courts, the Bail Act sets out the matters that a court is required to take into account in determining bail applications.

The criteria to be considered in Bail Applications are contained in Section 32 BAIL ACT 1978 - SECT 32 Criteria to be considered in bail applications. The fundamental criterion applicable to Bail Applications is the probability or improbability of a person responding to Bail, for example, whether an accused person is going to turn up at Court and the Community interest.

A person is entitled to bail if the person has been arrested for a minor offence, for example an offence that is only punishable by a fine or an offence under the Summary Offences Act.

The nature and seriousness of the offence, the strength of the evidence against an accused person and the severity of the penalty or probable penalty are also factors to be taken into account in considering Bail Applications

Section 8 of the Act sets out the circumstances in which a person has a right to be released on Bail for minor offences. Sections 8A - 8D of the Bail Act set out presumptions against Bail for certain offences listed therein. Section 9 of the Bail Act sets out provisions for presumption in favour of bail for certain offences

Sections 9A - 9B set out exceptions to those presumptions in favour of bail.
The effect of these provisions is where there is a presumption in favour of bail the Prosecution bears the onus as to why the person should not get bail. Where there is a presumption against bail for offences, the accused person bears the onus of showing why the accused person should receive bail. In matters where there are exceptions to the assumption in favour of bail, the issue is neutral as to who bears the onus.

The presumption in favour of bail does not apply in a number of circumstances, for example in certain domestic violence situations, where an offence is alleged to have been committed by a person who is already on bail or on parole, or if the person is charged with an indictable offence and has previously been convicted of an indictable offence.
There is a presumption against the grant of bail in relation to a range of serious offences, including serious drug, violence or firearm offences, or where a person is on lifetime parole or subject to a long term supervision order.

The Act also specifies a number of offences in relation to which bail will only be granted in exceptional circumstances, in particular murder or serious personal violence offences alleged to have been committed by a repeat offender.

The conditions for bail in the Supreme Court are quite different to the Local Court. Normally only one bail application can be made and if bail is refused then any subsequent application can only be made where the applicant can establish special facts or circumstances which did not exist at the time of the original bail application.

If the accused person is in custody having been refused bail then he will appear by way of Audio Visual Link ("AVL") from custody in all future interlocutory matters unless it is in the interests of justice that he appear in person and the Court so directs: see s 5BBA(1)(3) EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998.

If you have been arrested and are being refused bail, you will need to find a criminal lawyer to help you to make your bail application. City legal Solicitors defence lawyers have experience in making successful bail applications and take pride in the provision of strong defence in an attempt to secure our client's right to be at liberty.

Do not take a chance with your liberty. If you require professional assistance, please contact us.