If you have been charged with a criminal offence, the police will make an assessment about whether you free to go, whether there should be some conditions upon release or whether you should remain in custody until the hearing. The legislative authority for processes, procedures and decision-making regarding bail is found in the Bail Act 2013 (NSW) (“the Act”).

What is bail?

Pursuant to section 7 of the Act, bail is the authority to be at liberty for an offence, meaning that you are free to leave the police station or be released from custody notwithstanding you have been charged with an offence. Although there is a presumption that you are innocent until proven guilty, there may be circumstances or types of offences which require an assessment to determine which option is suitable.

Bail decisions include:

1. release without bail, made by a police officer with authority to do so
2. dispensation with bail, made by a court or authorised justice with authority to do so
3. grant of bail, made by a police officer, court or authorised justice with power to do so
4. with conditions; or
5. without conditions;
6. refusal of bail, made by a police officer, court or authorised justice with power to do so

What does the court consider in bail applications?

1. Show cause

Certain criminal offences require the defendant to ‘show cause’ that remaining in remand is not justified. Section 16B of the Act lists show cause offences which are serious in nature including personal violence offences, manslaughter or sexual assault. This requirement increases the difficulty in obtaining bail with additional considerations the court can take into account.

2. Unacceptable risk

After establishing that your detention is not justified, the court then considers the below bail concerns. If your offence is not considered a ‘show cause’ offence, the court considers the below bail concerns. You must be able to address or alleviate all of the below concerns that if you were to be released from custody you will:

• fail to appear at any proceedings for the offence, or
• commit a serious offence, or
• endanger the safety of victims, individuals or the community, or
• interfere with witnesses or evidence.

In some cases, these bail concerns can be easily addressed by imposing certain bail conditions such as:

• Conditions regarding conduct including surrendering your passport or reporting to police regularly;
• Conditions regarding security including asking someone to provide money as security in the event the accused person does not attend court when they are required to do so;
• Character acknowledgements involving a written acknowledgement from another person attesting to your good character to the effect that they believe you will obey your bail conditions;
• Conditions regarding enforcement including submit to breath or drug tests if you have had a bail condition imposed to refrain from consuming alcohol or drugs.

Additional factors are considered when assessing bail concerns, including:

• The accused’s background, criminal history, circumstances and community ties;
• The nature and seriousness of the offence;
• The strength of the prosecution case;
• Whether the accused person has a history of violence;
• Whether the accused person has previously committed a serious offence whilst on bail;
• Whether the accused person has a history of compliance or non-compliance with bail acknowledgements, conditions, AVOs or other court orders

Recent case

On 22 April 2020 in Kew, Victoria a tragic accident occurred resulting in the loss of four Victoria Police officers during a routine roadside breath test. Police allege that Mr Richard Pusey, who was on bail at the time, was the driver of a Porsche who was caught speeding when he was pulled over. Police allege that a drug test taken by the driver returned a positive result and whilst the car was preparing to be impounded, a semi-trailer drove at significant speed into the police officers stopped in the emergency lane. Police allege that Mr Pusey took photographs and video recordings of the scene instead of rendering assisting to the police officers and proceeded to flee the scene.

The accused has been charged with several offences including driving at a dangerous speed, reckless conduct endangering life, destruction of evidence, failing to render assistance and perverting the court of justice.

The accused’s representative submitted that Mr Pusey has a pre-existing mental health condition suggesting he went into shock at the time, could not have offered any assistance at the time as this was being done by a doctor and that he would not receive the mental health treatment in jail.

The police have argued that Mr Pusey has a poor driving history relying upon evidence where the accused has recently boasted about driving recklessly. The police have alleged that the accused has demonstrated disregard towards law enforcement, public safety and other road users. Police allege that the accused has demonstrated concerning behaviour which puts him at considerable risk to the community. The police have raised concerns that the accused’s tendency to fixate on people may lead to the accused interfering with witnesses. The police also allege that the accused’s criminal history is substantial with similar offences resulting from aggressive, abusive and reckless conduct. The police have also raised that due to the seriousness of the offences the accused has been charged and the strength of the prosecution case that bail is opposed. The police have maintained their firm position that there is an unacceptable risk to the bail concerns and bail is opposed.

Magistrate Jo Metcalf is due to deliver their decision on whether bail is granted or refused on Thursday.

The above is considered general information only and is not intended to be relied on as legal advice. For legal advice on applying for bail or applying to vary bail conditions, call Pannu Lawyers on (02) 9920 1787 to speak to one of our experienced criminal lawyers now. Pannu Lawyers regularly appear in the Local Court of NSW, District Court of NSW and Supreme Court of NSW. We also appear on Saturday and Sunday in Bail Application at Parramatta Court.