As you may have read from a previous post on our website with respect to ‘Bail’ in the state of New South Wales, when a person is charged with an offence, they may or may not be arrested by the police. If the person is not arrested, they will be given a notice to attend court, or the person can simply be released on bail.
Bail could be granted by (firstly) a police officer following an arrest and this is commonly called ‘Police Bail’. Secondly, Bail can also be granted by the Local Court in circumstances where the police have refused bail, and this is usually called ‘’Court Bail.’’
Thirdly, if you have been refused bail by the Local Court (or sometimes even the district court) you can apply to the Supreme Court for a Bail Application.
Fourthly (and in very rare circumstances) if bail has been refused by the Supreme Court, section 67 of the Bail Act 2013 empowers the Court of Criminal Appeal with the ability to consider a Bail Application. The Court of Criminal Appeal usually consists of a bench of 3 Judges of the Supreme Court who will hear the Bail Application to make a determination as to whether or not Bail is to be granted.
But the question begs, what happens if you breach bail in the state of New South Wales? If a person fails to comply with a condition of their bail; then the police have discretion regarding what they will do next. The police can choose to take no action, or they can warn you against any other further breaches. The police can also issue a person who has breached their bail with a Court Attendance Notice for that person to attend court or apply for a warrant for that person’s arrest or even arrest a person without a warrant and take that person before the court at which point the police will then request that the court vary the person’s Bail conditions or simply revoke that person’s Bail.
Bail Breaches in NSW are mostly admitted, however if the person does not admit that he or she have breached their bail then there will be a short Court Hearing. At the Court Hearing, the court must be satisfied on the Balance of Probabilities that police have proven that bail was breached by the defendant and the court may take into consideration any information available which the court considers to be credible to make an informed decision. It should also be noted that the rules of Evidence do not apply in those types of situations.
If the defendant fails to appear in accordance with his or her bail acknowledgment, then it is a criminal offence and the maximum penalty for failing to appear in accordance with your bail acknowledgment could be 3 years imprisonment and or a maximum fine of $3,300.
Did you also know that the Maximum Penalty for failing to appear in accordance with your Bail acknowledgement can also be the Maximum Penalty for the offence which you are on Bail for?
It should also be noted that it is a defence if the defendant can prove that they have a reasonable excuse for not appearing in court. If the defendant is found guilty of failing to appear then the surety to the bail may have to forfeit any money which he or she lodged for the purpose of the original Bail undertaking.
What happens if you have failed to comply with your Bail undertaking?
If the defendant has failed to comply with his or her bail undertaking, then the court may choose to do any of the following:
<![if !supportLists]>· <![endif]>Refuse or Revoke Bail.
<![if !supportLists]>· <![endif]>Release the defendant to their Original Bail
<![if !supportLists]>· <![endif]>Vary Bail or change the Original Bail.
It should also be noted that if the court revokes or refuses the defendant Bail, after having considered all other alternatives, then the surety to the Bail may have to forfeit any money which may have been lodged for the Bail.
*This article correctly reflects the Laws of NSW as at 10th May 2022.
*It should be noted that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship.