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May 29, 2023
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When someone is charged with a crime in New South Wales, they may be granted bail or held in custody. The rules for deciding bail are set out in the Bail Act 2013. If the person is under 18 years old, there are additional factors from the Children Criminal Proceedings Act 1987 to consider. This section focuses on how to request bail in the Children’s Court of New South Wales.
Bail can be given by the police or by a court. If the police don’t give bail, the person has to go to court quickly to ask for bail. When the person is under 18, this happens in the Children’s Court.
According to section 19 of the Bail Act, bail won’t be given if the court decides that letting the person out of custody would create too much risk in terms of:
1. Failing to appear at court;
2. Committing a serious offence;
3. Endangering the safety of the community;
4. Interfering with witnesses or evidence.
Where the court holds great concerns, it is for the Magistrate to determine whether the imposition of bail conditions could minimise any risks that they may pose once released. If the risks are unable to be addressed, then bail will not be given. This applies to both adults and young people
Adults facing serious charges seeking bail must prove they shouldn’t be detained (called ‘showing cause’). This means bail is unlikely, and the defence must overcome this. However, children charged with serious offences don’t have to ‘show cause’ for bail.
Once granted bail, individuals must attend court and avoid serious offences. Additional conditions can apply, like:
1. Attendance at school.
2. Abstaining from alcohol or other substances.
3. Adhering to a curfew.
4. No contact condition with specific people.
5. Staying away from certain places.
6. Using electronic monitoring.
Conditions must address concerns and not be overly burdensome as outlined in section 20A of the Bail Act 2013 (NSW). Requiring money (a surety) only happens if there’s a real risk of not appearing.
Breaching bail occurs if someone doesn’t show up in court, commits a serious offence, or by breaching a condition of your bail.
Pursuant to section 79 of the Bail Act 2013 (NSW), failure to appear at court constitutes a criminal offence and carries a maximum penalty of three years imprisonment and/or a fine of $3,300.
It is important to note that not following conditions specified in your bail is not a direct offence, but it can lead to court actions, including varying or revoking bail.
For legal advice, contact KPT Defence Lawyers.
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