Bail Applications 

If you have been arrested and charged with a criminal offence in NSW, it is no doubt a distressing experience, particularly for your close family and friends who may be unsure what can be done to have you released from custody.

Generally, the police will be responsible at first instance to determine whether you should be granted bail. In less serious matters, the police can bail you from the police station on the basis that you undertake to attend court on the next occasion and comply with any conditions such as not contacting any witnesses in your case, living at a particular address, and/or reporting to a local police station on nominated days.

If the police refuse bail, they must bring you before a court as soon as practicable either the same day or the next morning. You should call Paul FC McGirr on 0405 508 099 at the first available opportunity so that preparation for a bail application can begin immediately. The bail laws in NSW have been significantly reformed in recent years, with the Bail Act 2013 (NSW) having almost completely rewritten the previous provisions. Further amendments were announced in August 2015 as a result of the coronial inquest into the deaths which occurred during the Sydney Siege. McGirr & Associates is fully appraised of the new laws and upcoming amendments and we have extensive experience in making bail applications, whether in the Local Court or the Supreme Court. 

The importance of a well-prepared and persuasively-argued bail application cannot be overstated as it will often mean the difference between being released from custody, and spending several weeks and months (or more) on remand in a correctional facility. Furthermore, there are only very limited circumstances where more than one bail application can be made, thus it is imperative that your first bail application is your best effort which is why you should call McGirr & Associates on 02 8039 7497. Do not waste your chance at bail.

There are a number of things that family or friends can do to assist in the preparation of a bail application:

Residence Letters

In considering an application for bail, the court's mind will be turned to whether the accused person will have a place to reside whilst on bail. If the accused won't have a place to live, the chances of further offending will probably increase. 

A family member or friend can therefore counteract the court's concerns by writing to the court confirming that they are happy to allow the accused to live with them. The letter should be addressed to the Presiding Magistrate in the Local Court, or the Presiding Judge if being heard in the District Court. If the application is being made in the Supreme Court, McGirr & Associates will assist in preparing  a sworn statement in the form of an affidavit.

The content of the letter or affidavit should include the following:

  • That the family member or friend is aware of the charges against the accused;

  • The names and ages of any other people living at the premises, and how they are related to the accused, friend or family member;

  • Whether the family member or friend is employed and how often they expect to be home;

  • Details of the nearest police station;

  • Whether the family member or friend can accompany the accused to the police station if required to report to police as part of the conditions of bail;

  • Any other positive factors that will demonstrate how the family member or friend will support the accused in complying with their conditions of bail, especially where there are curfews or orders to avoid particular areas;

  • Whether the family member or friend has any prior criminal convictions and, if so, outline the circumstances; and

  • Whether the family member or friend is an undischarged bankrupt.

Letters must be typed, signed and dated. McGirr & Associates will further ensure affidavits are in the proper form.

Support Letters

A support letter is further evidence that can be given to the court and it is similar to a character reference. Generally, they will be written by a family member, friend, work colleague or employer. Their purpose is to demonstrate to the court that the accused is a responsible person who will turn up to court when required and who will comply with any bail conditions. It would also include details as to how the accused would be supported if they are released from custody.

The letter should commence with a brief paragraph outlining who the person is, how they know the accused and for how long they have known them. Other important information might include:

  • Evidence of good character or any positive personal traits, such as community participation or leadership;

  • If an employer is writing the letter, anything that indicates a strong work ethic or positions of responsibility, and where possible, the potential of future employment upon release from custody;

  • Evidence of how the accused will be supported, such as assistance in finding employment, enrolment in rehabilitation programs, assistance in obtaining medical care, etc.; and

  • Expressing confidence that bail conditions will be complied with.

The support letter must not make any statements or otherwise commentate on the court proceedings, such as whether the accused is guilty or not guilty of any offences, disputing the facts or criticising the police. The support letter should impart confidence on the court that the accused will not breach their bail and will not be at risk of  offending.

Surety

A surety is a person who agrees to pay or forfeit an amount of money or property if the accused does not turn up to court when required.

The accused may wish to act as their own surety, which entails them losing their own money if they do not show up to court. Alternatively, the accused may wish to have a family member or friend elect to be a surety by offering to forfeit their own money in the event of non-compliance.

While the amount of money or property (otherwise known as security) is at the discretion of the court; it is generally the case that more serious offences will require larger amounts.

There are conditions that must be met when using money as security. Firstly, the surety must have the agreed amount in their bank account, it cannot be a mere promise to obtain it in the future and nor can the surety promise money they do not have. Secondly, the surety must provide evidence that the money has been in the bank account for at least 7 days.

In relation to using property as security, the surety will need to demonstrate that the relevant equity in that property exists after accounting for mortgages and other debts. In respect of real estate, it is normally necessary to obtain a copy of the title deed, a property valuation and a recent mortgage statement. These can be quite onerous requirements and potentially involve substantial costs. McGirr & Associates can advise you on the best course of action depending on your circumstances.

The security itself may be secured or unsecured. If it is secured, the surety will need to deposit the agreed amount of money before the accused is released; while if unsecured, the surety agrees to forfeit the money or property if the accused breaches their bail.

Finally, to be a surety, it is necessary to demonstrate to the court that the surety is an acceptable person meaning that they don't have any previous convictions and that they are not an undischarged bankrupt. If the court grants bail, there will be a relevant form at the court registry to complete at the conclusion of the bail hearing.

Rehabilitation

If the charges are linked to a drug, alcohol or mental health issue, it will often increase the accused's chances of being granted bail by showing evidence of enrolment in a rehabilitation program. An acceptance letter from the relevant centre or program will need to be tendered in court during the bail application. It will help persuade the court that the accused is showing a real intention to address their underlying conditions  and that they are unlikely to offend whilst on bail. The court may make it a condition of bail to participate in the relevant program.

McGirr & Associates is appraised of several programs, centres and medical practitioners that may assist your chances in obtaining bail. 

What to do if granted bail

If you are granted bail by the police or a court, it is important that you comply with all conditions to avoid being arrested and taken into custody. Non-compliance can result in you being held on remand for several weeks or months before your matter is heard, which will have significant consequences on your life. 

Beyond the clear and obvious benefit of having your freedom, being on bail allows you to:

  • obtain the necessary help to overcome problems such as drug and alcohol addiction;

  • maintain your employment;

  • pay your bills;

  • support your family and spend time with them; and

  • obtain legal advice from McGirr & Associates to properly prepare your defence.

Many of these benefits are made much more difficult or impossible if you remain in custody and it can place significant strain on your family.

This is why it is imperative that you speak to Paul FC McGirr on 0405 508 099 at the earliest available opportunity and obtain advice and next steps for your bail application. He has been able to obtain bail for clients even in the most difficult and serious cases, including those involving sexual assault, large commercial drug importation and trafficking, and firearms.