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How does a bail enforcement condition by a court work in New South Wales? – Crime



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What is a bail enforcement condition?

When a person gets bail, they can have certain conditions
attached to their freedom. Such as, requiring them to reside at a
specific address or imposing a curfew. These conditions are
designed to alleviate any concerns or risks when granting bail,
known as a ‘bail concern’.

An enforcement condition is a type of condition
that requires the accused person who gets bail to comply with one
or more kinds of police directions (s 30(2)). These assist
monitoring and enforcing compliance with an underlying bail
condition/s. In other words, they ensure that you stick with one or
more of your bail conditions. For example, refraining from drugs or
alcohol may be an underlying bail condition. The court could impose
an enforcement condition that requires the accused person to
undergo drug and alcohol testing to confirm they have not consumed
drugs or alcohol.

The law for imposing enforcement conditions is found in the
Bail Act 2013 (NSW).

Who can impose a bail enforcement condition?

An enforcement condition can only be imposed by a court at the
request of the prosecutor (s 30(3)).

When can the court impose a bail enforcement condition?

The court can impose an enforcement condition if it considers
the condition to be reasonable and necessary (s
30(5)). When deciding this, the court should have regard to:

  • The history of the accused person. This includes their criminal
    history, and particularly any criminal history involving serious
    offences, or a large number of offences;

  • The likelihood or risk that the accused person will commit
    further offences while on bail; and

  • How complying with directions given under an enforcement order
    may unreasonable affect people other than the accused who is
    granted bail (s 30(5)).

The enforcement condition must include:

  • The kinds of directions that can be give to the accused
    person;

  • The circumstances in which each kind of direction can be given,
    to ensure compliance with the directions is not unnecessarily
    difficult; and

  • The underlying bail condition that the direction aims to
    enforce (s 30(4)).

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What happens if you do not follow a direction issued under the
enforcement condition?

If you do not follow a direction issued under an enforcement
condition, this is considered a breach of a bail condition. Police
have several options when you breach a bail condition (s 77(1)).
These are:

  1. Take no action;

  2. Give the accused person a warning;

  3. Issue the accused person with a notice that requires them to
    attend court or appear before an authorised justice;

  4. Issue the accused person with a Court Attendance
    Notice
    (CAN) (if the officer believes the breach is also
    an offence);

  5. Arrest the accused person, and take them before a court or
    authorised justice as soon as practicable; or

  6. Apply to an authorised justice for a warrant to arrest the
    accused person.

What action police take will depend on (s 77(3)):

  1. The seriousness of the breach;

  2. Whether the accused person has a reasonable excuse for the
    breach;

  3. The personal attributes and circumstances of the accused
    person; and

  4. Whether an alternative course of action is appropriate, rather
    than arresting the accused person.

The considerations in the Act do not limit what matters can be
considered when police decide what action to take.

What happens if I can’t comply with the underlying bail
condition?

If the underlying bail condition is too onerous or unnecessary,
you can consider applying for a variation of your bail conditions.
For more information on bail variations, visit our blog: Everything you need to know about bail
variations

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