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Before prison: The criminal court process

Bail: Release into the community during your court case

What is bail?

Bail Act 2000, s 30; Criminal Procedure Act 2011, s 168

Bail is when you’re facing charges and the courts let you stay in the community on set conditions until the next time you have to come back to court. There might be conditions about where you can live and who you can talk to. Often you’ll have a curfew – which means you have to be at home after a certain time at night.

If you’re just “remanded at large”, this means that you’re not on bail and there are no conditions placed on you. All you have to do is come back to court next time you’re due to be there.

If you’re “remanded in custody”, this means you’ll be in prison while the court process is going on (called being in prison “on remand”). You should be in a separate part of the prison from sentenced prisoners.

How can I get bail?

Your lawyer (or you yourself if you don’t have a lawyer) can ask the judge for bail when you first go to court.

How will the judge decide whether or not to release me on bail?

Bail Act 2000, s 8

The judge will take into account these three main factors:

  • First, whether you’re likely to turn up to court next time. If in the past you’ve had many arrest warrants issued against you and you’ve often failed to turn up to court when you were supposed to, it’ll be harder for you to get bail.
  • Second, interference with police witnesses. If you have a history of interfering with or harassing the police’s witnesses, or if the police have evidence that you’re likely to try to persuade the witnesses not to come to court, the judge may decide to remand you in prison (“remand in custody”).
  • Third, whether there’s a risk you might commit other criminal offences while you’re released on bail. As well as information about the current charge you face and the police version of the facts, the judge will also be given a copy of your criminal record and of what’s called a “bail history”, which shows how many times you’ve been on bail and whether you’ve committed any other offences while you’ve been on bail.

If you are granted bail, it’s crucial that you don’t re-offend in any way, even if it’s just a minor offence.

Bail conditions

Bail Act 2000, s 30

If the judge has any concerns about the issues above, they can make special bail conditions. For example, if the judge is concerned you might try to contact the victim, and the victim lives in a different city or suburb from you, a bail condition might be that you mustn’t go to that other city or suburb. Other conditions can include:

  • “non-association” conditions, which mean you can’t talk to or have contact with certain people, like the people you’re being charged with
  • curfew conditions, which mean you must be at home after certain times of the day or night
  • conditions that you report to the police regularly, to help make sure you’ll be in the right town on the right date and able to go to court.

Applying for bail again after being turned down

If you’re refused bail when you first appear in court (and are kept in prison on remand), it can be hard to get bail at the next stage of the case, unless something has changed.

If you can address the reasons why you were refused bail, you might be able to get bail when you next apply for it. For example, if you were refused bail because you didn’t have a suitable bail address, but you can find somewhere to stay where you’re welcome and that the police are happy with, you might get bail next time.

Make sure your lawyer knows about personal factors that might affect the judge’s bail decision – like work responsibilities or the need for you to look after your children.

If your court date is delayed, you might be able to get a special hearing to apply for bail so that you don’t have to wait so long in prison. Talk to your lawyer about this.

Can my bail conditions be changed?

Bail Act 2000, ss 33, 34

Yes, you can ask the court to change your bail conditions whenever you appear in court. Conditions can change with the agreement of the police or, if the police oppose any change, you can get your lawyer to apply to the court to change your bail conditions.

For example, if you’re on a curfew but you get a job that would overlap with the curfew, the police may agree to change your curfew. If they oppose the change you can still get your lawyer to apply to the judge to change the curfew.

Can I challenge a decision to refuse me bail?

Bail Act 2000, s 44

Yes, if the judge refuses you bail you can appeal the decision to a higher court. You should talk to your lawyer about this process and about the reasons for appealing.

“EM bail” – electronic monitoring (ankle bracelet)

Bail Act 2000, ss 30A-30S

If you’re in prison now, talk to your lawyer about whether electronically monitored bail, known as “EM bail”, might be an option for you. This is where you live at your home wearing an electronic ankle bracelet. EM bail can take a while to arrange, but it can be a good option if you’re going to be on bail for a long time waiting for your trial.

It is hard to get permission to go out to work while you’re on EM bail.

What if I breach my bail conditions?

Bail Act 2000, ss 35, 38

If you breach bail by not meeting one of your conditions (like not being at home during your curfew), you can be arrested. You can also lose your right to bail and instead be held in prison (“remanded in custody”). However, if there was a good reason for your breach and you can explain it to the judge, you may be able to have your bail conditions changed and stay on bail.

If you breach bail by failing to turn up at court when you have to, under the terms of your bail, this is also a separate criminal offence, carrying a maximum prison term of one year.

Does time spent on bail count towards my sentence?

Sentencing Act 2002, s 9; Parole Act 2002, s 95

No, time spent on bail doesn’t count automatically towards your sentence.

However, the type of bail conditions you’re given and whether or not you’ve followed them could be relevant to the sentence you’re given, in the following ways:

  • If you’ve obeyed your bail conditions, the sentencing judge may take that as showing you’re able to follow court orders, and this could make a community-based sentence more likely.
  • If you’ve been on a 24-hour curfew as a condition of your bail or been on electronically monitored bail (“EM bail”), the sentencing judge may decide to take that into account and reduce your sentence.

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Before prison: The criminal court process

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