What is Bail?

If police have taken you into custody and charged you with an offence they can release you with a Court Field Notice advising you of your upcoming court date or they can also add to your Court Field Notice, a direction for your release on ‘bail’.

Bail requires you to sign a form declaring you promise to attend your upcoming court date, in relation to your charge/charges, and other bail conditions may be imposed too.

If police don’t give you bail, you will be brought before a court where you can ask for it. You may be kept in a cell overnight or for several hours before court opens for you to do this.

During this time, you may get free legal advice from a Legal Aid NSW duty lawyer, or you could also call a defence solicitor, so that they can begin to build a case strategy for you.

At ‘bail court’ there are two factors the court must consider before deciding whether to give you bail (and release you from custody):

  • Whether you need to ‘show cause’

The court will first need to decide whether you need to explain why it is not justified for you to be left in custody. The court will consider many factors when making the decision on whether you need to ‘show cause’.

Things like – what you have been charged with, and whether you were already on bail or parole when you were charged – will all be taken into account. Anyone charged with a serious offence cannot show cause.

After deciding whether you need to show cause, the courts will consider several concerns before deciding whether you get bail.

  • Bail concerns

The court must be sure that you will attend your future court date. It will consider several bail ‘conditions’ which could be imposed to address any concerns in relation to that matter.

The conditions the court sets for you must be workable and proportionate, and appropriate to the offence that you have been charged with and to the concerns the court has. Conditions can include:

  • ‘Conduct requirements’
    Things you must do or must not do, such as having to report to police every day, or live at a specific address or surrender your passport, or not associate with specific people, or not go within a certain distance of a specific place, or obey a curfew.
  • ‘Security requirements’.
    A financial surety that aims to ensure that you attend court when you are supposed to. Sometimes security can be property instead of money.
  • ‘Character acknowledgements’
    Require a person of good character to sign a form saying they believe you are a responsible person who will obey bail conditions.
  • ‘Enforcement conditions’
    Make sure you comply with one of your other bail conditions. Examples include a condition that you must answer the door so that police can check you are complying with your curfew.

If the court refuses you bail, you or your legal representative can appeal your application the NSW Supreme Court.

It is important to get bail so that you are not left to wait in goal for your court date.

In both NSW and Qld, the justice system can be slow moving, and complex cases can involve several mentions before any matter is heard or finalised.

You may spend more time in goal than any imprisonment sentence a court may impose at a later court date.