If you or a close family member is currently on bail, you may find that the conditions set by the court are no longer suitable or need to be adjusted due to changing circumstances. This can be a change of job, a family commitment or any other significant reason; therefore, understanding how to request a change in bail conditions is crucial. 

This article will guide you through the essentials of bail variation, including what it entails, common reasons for requesting a change, who is eligible to apply, the factors the court considers in making a decision, and the step-by-step process for submitting a bail variation application. Faraj Defence Lawyers will help you navigate varying bail conditions in NSW.

‍

Purpose of Bail Conditions

Bail conditions are specific requirements set by the court to ensure that you comply with the legal process and maintain public safety. Bail itself is a legal promise to attend court and comply with these conditions. These conditions can range from regular reporting to the police to travel restrictions or curfews. They are designed to mitigate any risk posed while you wait for your court proceedings. If you have not read our article on bail conditions, we highly recommend doing so to gain a better understanding of their importance and implications.

While bail conditions are meant to be strict to serve their purpose, they can be changed under certain circumstances. Adjustments can be made through a formal bail variation application, ensuring the conditions remain fair and practical given any new developments in your situation.

‍

What is a bail variation?

A bail variation is a formal request to change the conditions of bail initially set by the court. This legal procedure allows you to modify certain aspects of your bail conditions to better suit your current circumstances. Agreeing to bail conditions is a formal undertaking to the court, meaning you make a written promise to attend court and comply with the specified conditions.

Variations can include changes in reporting requirements, adjustments to curfews, or alterations to travel conditions. The process ensures that bail conditions remain reasonable and practical, reflecting any significant changes in your life while still upholding the primary objectives of bail, such as ensuring court attendance and protecting the community.

Reasons for Requesting a Bail Variation

There are numerous reasons why you may request a bail variation. Life circumstances can change unexpectedly, making the original bail conditions impractical or impossible to comply with. For example, you may secure a new job that requires you to travel or work during hours that conflict with your curfew. 

Other reasons could include health issues that necessitate medical appointments outside permitted times, or family commitments that require a more flexible schedule. It is important to understand that the court recognises these changes and provides a mechanism to adjust bail conditions accordingly, ensuring that you can continue to meet your legal obligations seamlessly.

Examples of Bail Conditions Being Changed

1. Curfew Adjustments: You may have a curfew that requires you to be home by a specific time. This could be difficult if you work a later job or cannot be home by this time. In this situation, you could request a bail variation to extend or remove the curfew to accommodate your schedule.
2. Police Reporting Requirements: You may be required to report to a police station daily as part of your bail conditions. If your work schedule changes or you need to relocate, you could request to change the reporting frequency or location.
3. Travel Restrictions: You may have restrictions preventing you from leaving a specific area. If you need to travel for significant circumstances such as medical treatment or for a family member, you can apply for a vacation to allow for the necessary travel.
4. Residence Conditions: A bail condition may require you to live at a specific address. If you need to move from this address for a significant reason, you can request a change in the residence conditions to reflect your new living situation.
5. Interstate Travel: If your bail conditions restrict you from leaving your state, but you need to travel interstate for work, family emergencies, or other important reasons, you must apply for a bail variation to allow interstate travel. This is especially important if your criminal history includes offences from other states, as interstate records may be considered when deciding on your application.

‍

Eligibility for Bail Variation

To be eligible to apply for a bail variation in New South Wales, you must have already been granted bail and be subject to bail conditions that you wish to change. Under the Bail Act 1977, Section 18AC, any person who has been granted bail can apply to vary the amount or the conditions of their bail. This is particularly relevant if you find yourself unable to comply with a bail condition within 24 hours of being granted bail, or if your circumstances change in a way that makes compliance difficult or impossible.

If you are facing a serious offence, such as murder or treason, your application to vary bail conditions must be made to the Supreme Court. For other offences, you can apply to the Magistrates’ Court. It is important to provide reasonable notice to both the court and the prosecutor when applying for a bail variation, ensuring all parties have adequate time to consider your request. Whether your situation has changed due to employment, family, or other personal reasons, the law recognises your right to seek a variation, provided you follow the correct procedures and notify the relevant parties.

‍

Types of Bail Variations

There are various types of bail variations you can apply for, depending on your individual circumstances and the specific bail conditions you are subject to. Common examples include changing the address where you are required to reside, reducing the frequency of reporting to a police station, modifying or removing curfew conditions, and altering restrictions on associating with certain persons. In some cases, you may also seek to vary the amount of bail or request that new conditions be imposed on previously unconditional bail.

For instance, if you have been charged with a domestic violence offence, you might need to apply for a variation to allow you to live at a specific address or to have contact with certain persons, such as family members. Similarly, if your work or family commitments change, you may need to adjust your reporting requirements or curfew. The type of bail variation you seek should be tailored to your needs and the nature of your offence, ensuring that you can comply with your bail conditions while still meeting your personal obligations.

‍

Who can make a bail variation application?

Only an interested person can make a bail variation application. An interested person is typically someone who has a direct involvement or stake in your bail conditions. This includes yourself, your lawyer, or a close family member who may be affected by your bail conditions. The person charged with an offence is eligible to apply for a bail variation.

An interested person is defined as anyone whose rights, interests, or obligations are directly impacted by the bail conditions. For instance, a family member who is responsible for providing your care or housing may be considered an interested person.

Additionally, you or your lawyer are recognised as an interested person who is eligible to request a bail variation. This ensures the application is made by someone who fully understands the circumstances and the need for the requested changes.

‍

What does the court consider when deciding on varying bail?

When deciding whether to vary bail conditions, the court takes several factors into account to ensure that the changes are appropriate and justified. Considerations include:

Show Cause Test

In some cases, for serious offences, you must show cause as to why your detention is not justified. This means demonstrating to the court why you should be granted bail or have your conditions varied. In certain situations, such as during an appeal or for particularly serious offences, the court will only grant bail if exceptional circumstances are demonstrated.

Unacceptable Risk

The court assesses whether varying bail conditions would pose any unacceptable risk. This includes evaluating the likelihood that you might fail to appear in court, commit further offences, endanger the community, or interfere with witnesses or evidence.

Necessity and Proportionality

The court considers whether the variation is reasonably necessary to address specific bail concerns. The change must be proportionate to the offence and must appropriately address the particular bail concern.

Compliance

The proposed variation should not be more onerous than necessary and must be reasonably practical for you to comply with. The court must have reasonable grounds to believe that you will adhere to the new conditions.

‍

‍

What is the process of varying bail conditions? 

The process of changing your bail conditions is as follows:

1. Notify and Get Consent from the Prosecution
2. Fill out the Bail Application
3. Signed Agreement from Surety
4. Attend the Bail Hearing

1. Notify and Get Consent from the Prosecution

The first step in varying bail conditions is to notify the prosecution and obtain their consent. This is crucial because the prosecution must be aware of any changes to the bail conditions and agree that the proposed variations are reasonable. 

This step helps to ensure that both parties are on the same page and can avoid unnecessary conflicts or objections during the court proceedings. 

‍

2. Fill out the Bail Application and Send It to the Judge

Next, you will need to complete a bail application form. Additionally, you must attach a copy of the current bail conditions, clearly specifying which conditions you seek to vary, and provide reasons for the requested changes. This information will help the Magistrate or the Judge understand the context and necessity for the bail variation. 

‍

3. Signed Agreement from Surety

If there is a surety involved in the bail conditions, the surety must sign an agreement to the proposed changes. A surety is typically a person who guarantees that you will comply with the bail conditions, often by pledging money or property as a form of security. The surety provides a guarantee to the court that you will follow all bail conditions, and this guarantee can involve financial pledges or collateral to secure your future court appearances or adherence to bail conditions.

This could be a family member, friend, or any other person who has agreed to act as the surety. The surety’s signature indicates their awareness or and consent to the new conditions, ensuring that they understand the implications and remain committed to their responsibility in the bail agreement.

‍

4. Attend the Bail Hearing

You must attend a bail hearing, where the court will review the application and make a decision. During this hearing, the judge will consider all relevant factors, including the prosecution's consent, the details provided in the application, and any input from the surety. 

The Magistrate or Judge will then decide whether to approve the bail variation. The decision is typically given during the hearing, allowing you to know immediately whether the changes have been approved.

‍

Preparing for the Hearing

Proper preparation is essential for a successful bail variation application. Start by consulting with a lawyer who can guide you through the process, help you complete the necessary forms, and ensure your application is thorough and accurate. You will need to gather and present evidence to support your request, such as an affidavit detailing the reasons for the variation and any changes in your circumstances since bail was granted.

It is crucial to give reasonable notice to both the court and the prosecutor, as required by the Bail Act, so that your application can be properly considered. On the day of the hearing, attend court ready to speak to the magistrate or judge about your application. Your lawyer can also present your case, address any questions from the court, and advocate on your behalf. Being well-prepared and organised increases your chances of a favourable outcome when seeking a variation of your bail conditions.

How long does this process take?

The process of varying bail conditions can vary in duration depending on several factors, including the complexity of the case, the court’s schedule, and the efficiency in completing and submitting the required documents. Typically, the initial steps, such as notifying the prosecution and filling out the bail application form, can be completed within a few days to a week, depending on how quickly the necessary information and consents are gathered. Once the application is submitted, scheduling a bail hearing may take additional time, ranging from a few days to a few weeks, depending on the court’s availability. In some cases, urgent applications can be expedited, but this depends on the specific circumstances.

Overall, the entire process can take between a week and several weeks. It is advisable to begin the process as soon as possible to account for any delays and to ensure the application is heard in a timely manner. Delays in the process may result in the person remaining in prison or custody until the bail variation is decided.

‍

Breaching Bail Conditions

Breaching your bail conditions is a serious offence under the Bail Act and can have significant consequences. If you fail to comply with any of your bail conditions—such as not reporting to a police station, not residing at a specific address, or having contact with persons you are prohibited from seeing—you risk being arrested and taken into custody. Police have the authority to take you into custody if they believe you have breached your bail, and you may be charged with a further offence of breaching bail.

To avoid these consequences, it is essential to comply with all bail conditions at all times. If you find that you are unable to meet a particular condition, you should apply for a bail variation as soon as possible rather than risk breaching your bail. Seeking advice from a lawyer can help you navigate the process and ensure you remain in compliance with the requirements of the Bail Act.

Consequences of Breaching Bail

The consequences of breaching bail conditions can be severe and far-reaching. If you are found to have breached your bail, you may be taken into custody and required to appear before the court to explain your actions. The court has the power to impose additional or more stringent bail conditions, or to revoke your bail entirely, which could result in you being remanded in custody until your matter is resolved.

In addition to the risk of being placed in custody, breaching bail can lead to further criminal charges and penalties, including fines or imprisonment. It is therefore vital to take your bail conditions seriously and to seek legal advice if you are struggling to comply. By understanding the potential consequences and acting promptly to address any issues, you can protect your liberty and avoid further complications in your legal proceedings.

‍

Case Study: Defendant Able to Fly Overseas after Successful Bail Variation

We recently had a client who was released on bail for 5 months, with one of the conditions being that our client would not approach, within 500 meters, any place of international or domestic departure from New South Wales.  Our client had very ill parents and wanted to go see them, but they resided overseas. We submitted a bail variation application to change our client's bail conditions to allow our client to travel for 2 weeks with the addition of new conditions, such as surrendering their passport upon arrival back in Australia. 

Thankfully, the judge had approved this application, and our client was able to spend time with their parents. 

‍

Need assistance with changing your bail conditions? Contact us now.

Navigating the process of changing your bail conditions can be complex and challenging. If this is not done correctly, there is a risk that the court may not approve your bail variation. At Faraj Defence Lawyers, we have extensive experience and expertise in making bail variation applications. Our defence lawyers can assist you in ensuring that all necessary steps are correctly followed, increasing the likelihood of a successful outcome. If you have any questions regarding your existing bail conditions or are looking to have them varied, do not hesitate to reach out to us. 

‍

Call us now at (02) 7813 0950 or schedule in a free initial consultation virtually or at our Parramatta Office, and let us help you navigate this critical aspect of your legal journey with confidence and ease.

‍