Bail Presumptions | Bail Lawyers

Your chances of getting bail depend partly on the type of offence/s you are charged with.

For certain minor offences, there is a ‘right to bail’ (Bail Act (s8); which means that you must be released on bail if you are charged only with those offences except in very limited circumstances eg you previously breached bail conditions (s8(2)(a)(i)), or you require physical care or protection (s8(a)(ii)).

On the other hand, for certain drug offences there is a presumption against bail (s8A), which means that you are not entitled to bail unless the police and/or the Court are convinced (often by a lawyer through a Court application) that, despite the seriousness of the offence, you should nevertheless be granted bail.

For many other offences, there is no presumption either way; leaving the police or the Court to decide whether, on the ‘balance of probabilities’, bail should be granted (ss9(1), 9A).

Such offences are sometimes said to have a neutral presumption.

However, for most offences the Bail Act presumes that bail will be granted (s9(2)); in other words, it says that bail must be granted unless the police and the Court are convinced, after considering the matters in section 32 (see previous topic), that bail should be refused.

For such offences, it is said that there is a presumption in favour of bail.

Before reading on, check your police ‘fact sheets’ to see which particular offences relate to your case.

There is a right to bail for all offences under the Summary Offences Act 1988 and all offences that are not punishable by a prison sentence, except those involving the failure to pay fines (s8(1)).

There is a presumption against bail for certain drug-related offences under the Drug Misuse and Trafficking Act 1985 (sections 23(2), 24(2), 25(2), 26, 27 and 28) and the Customs Act 1901 (Cth) (sections 231(1), 233A and 233B).

There is a neutral presumption in respect of:

• Crimes Act sections 18, 26, 27, 28, 29, 30, 31, 33, 61J, 61JA, 61K, 66A, 66B, 78H, 85A, 90A, 95, 96, 97 and 98;
• Drug Misuse and Trafficking Act sections 23(1), 24(1), 25(1) and 25A but only if the offence involves at least twice the indictable quantity of drugs; see Bail Act s9(1)(d) & (d1);
• Firearms Act 1996 s7;
• offences involving domestic violence and/or breaches of apprehended violence orders eg Crimes Act; and
• failing to appear in Court; Bail Act s51.

There is a presumption in favour of bail for all other offences.

However, amendments to the Bail Act remove that presumption for persons judged to be ‘repeat offenders’, including persons who are:

• already on bail, parole and/or a ‘good behaviour bond’ ; and/or;
• still under periodic detention or a community service order.

In such cases, there is a neutral presumption (s9B).

Sydney Criminal Lawyers has an outstanding track record in obtaining bail for our clients, including in extremely serious cases such as murder, commercial drug importation, mulitple armed robbery, aggravated sexual assault etc.

Our bail lawyers can:

• advise you of your rights;
• explain the charges against you;
• explain your alternatives;
• represent you at you bail hearing;
• seek to have bail conditions varied (if you cannot meet them); and
• represent you for the criminal or traffic matter for which you are seeking bail.