Bail is when you’re released from court or police custody on certain conditions. Bail is granted on the condition that you will appear in court when next required. Bail is normally granted on other conditions which have to be reasonable. For example, conditions of bail might include being put under a curfew, requiring you to report into a police station, living at a specific address or not consuming drugs or alcohol (if it’s related to the offending).

New Zealand Bill of Rights Act 1990, s 24(b)

Note: If you’ve been charged with a crime, you have the right under “the Bill of Rights” to be released on bail on reasonable terms and conditions, unless there’s a good reason for continuing to hold you. The Bail Act sets out the specific rules around granting or refusing bail, and those rules are explained in this section below.

Bail Act 2000, s 21 Crimes Act 1961, s 316(5)

The decision whether to grant police bail is up to the police. No one has a right to be granted police bail. The police will consider granting bail in situations where you:

• are charged with an offence, and
• were arrested without a court warrant.

Note: Someone who has been arrested and charged with an offence by the police must be brought before a court as soon as reasonably possible.

Bail Act 2000, ss 9, 10, 12, 16, 17A, 21(1A)

The police can’t grant you bail if you’ve been charged with:

• Murder, or
• certain specified sexual or violent offences if you have previously been convicted of one of those offences (even if the previous conviction was for a different specified offence), or
• an offence with a penalty of three or more years in prison, if:
  • that happened while you were out on bail for another offence with a penalty of three or more years in prison, and
  • you have also previously served time in prison, or
• an offence with a penalty of three or more years in prison, if:
  • you have previously been sentenced to prison on 14 or more occasions, and
  • you have also previously been convicted of an offence while on bail for an offence with a penalty of three or more years in prison or while on remand (waiting for a court date), or
• drug-dealing.

The police are unlikely to grant bail if you have been charged with a serious offence, if you have nowhere to live (“no residential address”), or if you have been arrested for not obeying your bail conditions (“breach of bail”) (see below).

Bail Act 2000, s 23

If you’ve been arrested for breaching a Protection Order under the Family Violence Act 2018, you will be held in police custody for 24 hours after your arrest (see: the “Family violence and elder abuse”). During that time, you can’t get police bail.

Bail Act 2000, s 22

If you are charged with family violence offences, the police may also make conditions that are reasonably necessary to protect the alleged victim, anyone living with the victim and any family members of the victim.

Factors the police will consider in deciding whether to grant bail should be the same as those considered by the court (see: “What factors will the court consider in deciding whether to grant bail?”).

If you are granted bail, you have to sign a notice of bail (sometimes called a “bail bond”), which sets out the conditions of bail. You will then be released from police custody and will have to comply with the conditions placed on your bail. The police generally have the same power to impose bail conditions as the courts (see: “What type of bail conditions are there?” below).

New Zealand Bill of Rights Act 1990, s 23(3)

You will be kept in police custody. This means you will be taken to the cells or prison by the police and kept there until your next court appearance. Your next appearance will be as soon as reasonably possible.

Bail Act 2000, ss 24, 26, 39

If you don’t turn up to court at the time and place stated in your police bail notice, this is a criminal offence – separate from the charge that your bail relates to. If you’re convicted, you can be imprisoned for up to three months or fined up to $1,000. In the Bail Act, this offence is called “failure to answer bail”.

If you breach any of the other conditions of your bail – like a curfew, or regular reporting to the police – this isn’t itself a criminal offence, but it could mean you won’t get bail next time. It can be noted down in the court records (“sometimes called certification”), and it can be taken into account the next time you apply for bail, whether in your current case or a later one.

Police bail expires when you appear in court. If your case is not going to be decided on the first day in court, your lawyer can ask for court bail to be considered (see below).

If your case is not going to be decided at the first court appearance, the court will have to decide whether to hold you in prison or release you until your next court appearance.

Granting you court bail means the court will release you on certain conditions, including that you return to court for your next required appearance.

Note: If the offence is minor, you may be “remanded at large” without having to sign bail forms. This means that you are free to go, on the understanding that you will return to court on the given date.

Bail Act 2000, s 7

You have the right to court bail if the offence you’re charged with has a maximum penalty of less than three years’ imprisonment – but NOT if the offence is:

• an assault on a child, or
• an assault by a male on a female, or
• an assault on a family member or person you are in a relationship with.

If you’ve previously been convicted of an offence punishable by a prison term, and you’re being charged with another offence punishable by a prison term, you do not have an automatic right to bail.

However, the court has a discretion in some cases to grant bail to someone who would not automatically be granted bail (see below).

Note: Legal Aid is available for bail issues (see: “Legal Aid”  on page XX).

Bail Act 2000, ss 9-12

You can’t be granted bail if you are charged with a specific sexual or violent offence and have previously been convicted of such an offence (even if the previous conviction was for a different specified offence), except by an order of a District Court Judge or High Court judge. In order to be allowed bail, you must show the judge that while you’re on bail, you won’t commit any offence involving violence against anyone, or that might risk anyone’s safety.

There are further restrictions when you are charged with an offence that has a penalty of three or more years’ imprisonment, if you’ve previously served time in prison and you committed an offence while out on bail.

Bail Act 2000, s 8

In deciding whether to grant bail, the court must consider whether there is a risk that you may:

• fail to turn up to court on the next court date, or
• interfere with witnesses or evidence, or
• offend while on bail.

The court must also consider any matter that would make it unjust to keep you in prison.

The court might also consider:

• the type of offence and how serious it is
• the strength of the police case and how likely or not it is that you may be convicted
• the seriousness of the punishment you could get if you’re convicted
• your character and your criminal history
• whether you have offended before while on bail or you haven’t complied with court orders, including bail conditions
• the likely length of time before the matter will come before a court hearing or trial
• any possible unfairness to your case if you remain in custody
• any other special matter that is relevant in the particular situation.

Note: The attitude of the police to whether court bail should be granted is an important factor influencing the court’s decision. Your lawyer can contact the officer in charge of the case or police prosecutions. Even if the police don’t oppose bail, they will likely want various conditions attached to it. All bail conditions must be reasonable.

Bail Act 2000, s 8 Victims’ Rights Act 2002, s 30

If someone is charged with certain serious offences, including sexual violation or other serious assault, the court must take into account any views of the victim about whether bail should be granted. The police will get the views of the victim.

You will be held in prison until the next court date (“remanded in custody”).

Bail Act 2000, s 31

If you are granted bail, you have to sign a notice of bail or bail bond which sets out the conditions of bail. You will then be allowed to go, subject to the conditions placed on your bail (see below).

Bail Act 2000, s 30

The court can impose bail conditions that are reasonably necessary to make sure you:

• come back to court
• don’t interfere with witnesses or evidence, and
• don’t commit any further offences.

A minimum condition is that you appear in court at a particular time and place.

Other common conditions are that you may have are to:

• live at a particular address
• not go out between certain hours (“obey a curfew”)
• report to the police as required
• hand in your passport, if they think you are a “flight risk”
• stay away from (“not associate with”) anyone you’ve been jointly charged with
• not contact the complainant or any witnesses
• stay away from particular places
• not drink alcohol or go into pubs and other licensed places, and not use drugs (called a “drug and/or alcohol condition”).

Bail Act 2000, ss 30T-30X

If you have a drug or alcohol condition, you can be required to have alcohol or drug tests (including for psychoactive substances – “party pills”). You can also be required to wear a special bracelet or anklet to continuously monitor you for drug or alcohol use.

Sometimes you can be granted bail with an “electronic monitoring” condition (“EM bail”) (see below).

Note: The court can’t require you to pay money as a condition of bail.

Bail Act 2000, ss 30A-30S

In some cases, you can apply to the court to be released on bail with an “electronic monitoring” condition. You’ll have to wear an electronic ankle bracelet and stay at a particular address. You won’t be allowed to leave that address except for approved reasons like going to court or seeing a doctor.

You can only get EM bail if:

• the court has already remanded you in custody (which is where your case is put off for a time and you’re held in police cells or prison), and
• you’re likely to be on bail for at least 14 days.

Bail Act 2000, ss 38, 39

If you don’t turn up to court at the time and place stated in your court bail notice, this is a criminal offence, separate from the charge that your bail relates to. If you’re convicted, you can be imprisoned for up to one year or fined up to $2,000. In the Bail Act, this offence is called “failure to answer bail”. A warrant for your arrest may be issued.

If you don’t obey any of the other conditions of your bail – like a curfew, or regular reporting to the police – this isn’t itself a criminal offence, but it could mean you won’t get bail next time. This can be noted down in the court records (sometimes called “certification”), and it can be taken into account the next time you apply for bail, whether in your current case or a later one.