EDO NSW - Campaigning Guide

After you are charged, you will usually be either kept in police custody or released on bail. Bail is an agreement given by you to attend Court to answer a criminal charge. It is a conditional liberty since it is granted on the condition that you will provide a guarantee to appear to have the charges against you heard. The guarantee can simply take the form of your written promise to appear or you may be required to promise to forfeit a sum of money if you fail to appear. An “acceptable” person (formally called a “surety”) can also guarantee your bail. The conditions attached to bail can include restricting your movements, regular reporting to police or staying clear of certain places or people.

16.2 How Do I Get Bail?

The police must inform you of your bail rights and obligations514 and you have the right to communicate with a lawyer in relation to the bail.515 As soon as practicable after you have been charged, the police must decide whether or not to grant bail.516 Bail may be offered to you by the police (police bail) or, if the police refuse you bail, then they must take you to the next available court sitting so that a judge can determine whether or not to grant bail (court bail).517 If you are arrested on a Friday night this can mean you might spend the weekend in the police station. If you have been in custody for more than four hours, the police have a duty to provide you with washing facilities, showers, and allow a change of clothing.518

16.3 What Happens if I Don’t Get Bail?

If you are not granted bail, then you will remain in custody until the next hearing of your case or until the decision to refuse bail is reversed. There are limits to the time allowed between a court’s refusal to grant bail and your actual hearing (3 days or 8 days depending on who has refused you bail).519 If you are under 18 years old and have to be held in custody overnight you should be taken to a juvenile justice centre, if possible. This means that in many campaigns young people will be held at the local police station if arrested at a time when there is no court sitting.

You can make an application for court bail either orally before the court or you (or your solicitor, spouse, parent or guardian on your behalf) can make an application in writing. You can make as many bail applications as you wish while in custody (particularly for minor offences).520 However, the court will not hear these if they are “frivolous” or “vexatious”.521 It is wise to be well-prepared before seeking bail or making further applications. You need to be able to present good evidence of where you will live, who can guarantee your appearance, whether you can provide financial surety and so on.

16.4 Under What Circumstances Do I Have a Right to Bail?

Under the Bail Act there are certain circumstances in which you have a right to be released on bail. These circumstances include for example, where the offence charged is not one punishable by a prison sentence or is an offence under the Summary Offences Act (NSW). However, this is a qualified right. For example, you will probably not be released on bail if the police suspect you are incapacitated by drug use or if you have a history of non-compliance with bail undertakings.522

During protests against a World Trade Organisation meeting held at Sydney Olympic Park in late 2002, police arrested and detained about 50 protestors for up to 8 hours. Despite the fact that virtually all those arrested had a right to bail (being charged with summary and/or regulatory offences), police in all cases either refused bail or failed to make a bail determination. It was not before protestors were brought before a magistrate that they were granted bail and released. The lesson: ask for bail and, if it is refused, ask for a copy of the bail determination.

If your circumstances are such that you do not have a right to be released on bail, then whether or not you will be granted bail depends on a number of factors, as set out in section 32 of the Bail Act. These are, and are limited to, the following:

Unless there is evidence that you are unlikely to appear in Court or that you are likely to commit a serious offence while on bail, it is unlikely that you will be refused bail if you have been charged with one of the typical charges that arise out of non-violent action.

16.5 Will Conditions Be Imposed on the Bail?

Bail should generally be granted unconditionally.523 However, conditions may be imposed for the purpose of promoting effective law enforcement, for the protection and welfare of any specially affected person or the community, or for reducing the possibility of future offending through rehabilitation and other measures.524

For many charges involving campaigners, the circumstances will not be such as to allow the authorities to refuse bail outright. However, bail conditions can still be imposed and if they are unreasonable, you may decide not to accept them. The result is that you may still be detained.

The Court has a wide discretion as to the conditions that can be attached to the grant of bail. However, this discretion is not completely unlimited and the conditions must be no more severe than appear to the police or the Court to be required.525

16.6 What Happens if I Breach a Bail Notice or Fail to Appear?

If you are granted bail on certain conditions and you breach those conditions then you may be arrested.526 Accordingly, it is usually best to ask for unconditional bail. It is also an offence to fail to appear in the Court at the time and on the date contained in the bail notice.527 See Appendix C for a sample copy of an application for the grant of bail.

16.7 Court Attendance Notices

Arrest is supposed to be a measure of last resort. If you are accused of committing an offence the police can issue you with a Court Attendance Notice (CAN) rather than arrest you. If bail is not required, the police must provide you with a CAN or Field Warrant that contains the particulars of the offence and requires you to be at a specific Court on a specific date at a certain time.528 Field Warrants are particularly common in remote places. The officer that provides you with the CAN must tell you that failure to attend Court may result in your arrest. It is important to retain any document issued to you. There have been occasions when the date appearing on the CAN or warrant conflicts with the date notified to the Court. If the offence with which you are charged is a summary offence and you fail to attend court as required in the CAN then the prosecution may proceed in your absence.529 An example of a CAN is set out in Appendix D.

Text Box 16.1

Bail and the Franklin River Campaign

During the Franklin River campaign, arrested participants were granted bail on the condition that they would not return to the site where the dam was being constructed. When these conditions were challenged they were held to be within the discretion of the Court. Many people refused to accept these bail conditions and went to prison. This fact itself helped to escalate the issue and attract public attention.

It is important, however, to highlight that the decision to remain in gaol is not one to be taken lightly. Gaol is not generally a safe place and careful thought and caution should be exercised before voluntarily submitting oneself to these dangers.