7 Sep 2023It used to be that everyone had the right to bail, based on the legal assumption that people are entitled to be considered innocent until proven guilty. But over the years the general presumption in favour of bail has been tightened. It can now be refused if the person is arrested for a serious crime, may be a flight risk, or poses an unacceptable risk to the community.
What is police bail?
Police are required under law to determine whether to grant so-called police bail, or to refuse it as soon as possible. (Please see Bail, Local Court New South Wales.)
In NSW police can normally hold a person for up to six hours, but then must either release them, charge them, or apply for an extension.
Terrorism suspects can be held much longer, and in secret.
If police refuse bail, they must bring you before a court as soon as possible where a magistrate will hear arguments for and against granting bail. (Please see After the arrest, Law Society of NSW.)
Police are legally obliged to inform you that you have the right to a lawyer who can represent your case in court asking for bail.
Can I refuse to answer questions from the police?
You hear a lot about the right to silence when arrested.
Police can’t forcibly question someone, but if you agree to be interviewed by police, you must answer their questions.
If a lawyer advises you not to speak, you can refuse to answer questions. Police can’t arrest someone just for the purpose of questioning them.
Police must have reasonable grounds to suspect the person committed an offence before they can arrest them. (Please see Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002.)
What is the “unacceptable risk” test?
All bail considerations in NSW include an “unacceptable risk” test. Under section 19 of the Bail Act 2013, bail will be refused if the accused is likely to do certain things if it is granted.
The risks include that the person is unlikely to appear in court to face charges, could threaten or interfere with witnesses, could commit further offences, has no family or community ties, is incapacitated by drugs or alcohol or may self-harm.
The magistrate considers the accused’s background, criminal history and community ties, the strength of the prosecution’s case, any history of violence or criminal associations, whether the accused has adhered to previous bail conditions, and whether he or she would be especially vulnerable in prison.
The magistrate can set conditions, such as requiring the accused to post money that will be forfeited if they fail to appear. The accused may be required to stay away from a person or area, stick to a curfew, report regularly to police, surrender their passport and attend a drug treatment program.
Changes to the Bail Act have recently come into force that further tighten the laws, so it is important that if you find yourself arrested, you get expert advice from a criminal lawyer who can best formulate your bail application.
