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Everything you need to know about bail variations – Crime

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Bail variation by an application

What is a bail variation?

Sometimes people’s circumstances change, and bail conditions
become difficult, impossible or unnecessary. In these cases, an
accused person can apply for a bail variation to change their bail
conditions.

Section 51 of the Bail Act 2013 (NSW) (‘the
Act’) allows courts to vary or delete bail conditions. A court
or an ‘authorised justice’ decides the applications. Part 6
of the Act specifies who has the power to decide certain kinds of
applications. Depending on what court you make application to, an
authorised justice could be:

  • A registrar of the Local Court;

  • A registrar of the Children’s Court;

  • An officer who the Minister declared to be an authorised
    justice by ; or

  • A person or class of persons declared by the regulations.

Who can make a bail variation application?

You must be an ‘interested person’ to make a variation
application. The following get consideration as ‘interested
persons’ under the Act (s 51(1)):

  • The accused person granted bail;

  • The prosecutor;

  • The complainant in a domestic or family violence offence;

  • The person in need of protection (PINOP) under an ADVO; or

  • The Attorney-General.

When can you make a variation application?

There are no specific timing requirements to make an
application. However, if someone other than the accused person
makes the application, they must give the accused person reasonable
notice of the application (s 51(6)).

What variations can be made?

There are different kinds of conditions on a bail application.
The following conditions can face review by a court or an
authorised justice (s 52(2)(a)-(d):

  • A reporting condition, which requires the accused person to
    report to a police station while on bail;

  • A resident condition, which requires the accused person to
    reside at a specific address;

  • An associated condition, which requires the accused person to
    refrain from associating with certain people or classes of persons,
    or from attending a specific place or class of places.

  • A curfew condition, which imposes a curfew on the accused
    person.

The authorised justice has discretion to vary a reporting
condition and vary (but not remove) any of the other three
conditions (residence conditions, association conditions and curfew
conditions).

How is the application decided?

Courts and authorised justices consider variation applications
using the same principles as general bail applications. This
includes considering whether the condition:

  • is reasonably necessary to address a bail concern;

  • is reasonable and proportionate to the offence for which bail
    is granted;

  • appropriately meets the bail concern;

  • is no more onerous than necessary to address the concern which
    the bail condition addresses

  • It is reasonably practical for the accused person to comply
    with the condition; and

  • There are reasonable grounds to believe the accused person will
    comply with the condition.

They will also consider the unacceptable risk test, and any
relevant ‘show cause’ requirements.

Are there any limitations on bail variations?

There are several limitations on the power to make bail
variations.

A court or authorised justice can only vary a bail application
if the accused person (where someone other than the accused makes
the application) and the prosecutor (where the application is made
by someone other than the prosecutor) get  notification (s
54(4)).

A court cannot revoke bail on a variation application unless the
prosecutor requests it (s 51(9)).

An authorised justice cannot vary the enforcement conditions or
impose new enforcement conditions. However, an enforcement
condition imposed on bail by a court can be reimposed by an
authorised justice who makes or varies a bail decision. For more
information on enforcement conditions, see our blog post:
How a bail enforcement condition by a court work.

How do I apply for a bail variation?

You can apply for a bail variation by requesting a variation
from the court that granted you bail or appealing to a higher court
to change your bail conditions.  The person making the
application needs to file the variation application with the Court
and serve it on any relevant parties. You can apply for a bail
variation using an ‘
Application for Variation of Bail Conditions
‘ in the Local
Court, or the ‘
Bail Application form
‘ in the Supreme Court. It is best to
seek legal advice on which process applies to you.

Bail variation by the
court

Section 53 of the Act also empowers the court to consider
varying bail on an accused person’s direct appearance before
the court without a bail variation application. However, this power
is only appropriate when it benefits the accused person (s
53(2)).

This power is available when a condition, restriction or
requirement is ‘more onerous than necessary to mitigate the
unacceptable risk’.

POPULAR ARTICLES ON: Criminal Law from Australia

Domestic violence in Australia

Criminal Defence Lawyers Australia

A domestic violence offence is a personal violence offence against a person in a domestic relationship with the offender.

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