How to vary bail conditions?

When an accused person is charged with an offence and has their liberty restricted, a common question that arises is how to vary bail conditions.

You can vary bail conditions by filing an application with the court and providing the prosecution and the court sufficient notice.

• What is a bail variation?
• How do I apply for a bail variation?
  • Who can make an application for a bail variation?
  • When can you make a bail variation application?
  • What bail variations can be made?

  What is a bail variation?

  A bail variation is a change in the bail conditions a person is subject to. Often the original bail conditions you were placed on will become difficult to comply with or be unnecessary. Once this occurs, you can make an application for a variation of bail conditions.

  Section 51 of the Bail Act 2013 (NSW) gives the court the power to vary or delete bail conditions. A court or an ‘authorised justice’ decides the applications. An authorised justice includes:

  • a Registrar of a Local Court or Children’s Court;
  • An officer whom the Minister declared to be an authorised justice by;
  • A person or class of persons declared by the regulations.

  You will require a legitimate reason to change your bail conditions. Common examples include changing where you reside or reducing the number of days you report to police.

  How do I apply for a bail variation?

  You can apply for a bail variation by filing an application with the relevant Local Court. Your lawyer will need to complete an application for variation of bail conditions form.

  Your lawyer will prepare the relevant bail variation application and file it with both the police and the court. The court requires at least 3 working days’ notice before they can list the application to be heard. This also provides time for the prosecution to consent to the application.

  Who can make an application for a bail variation?

  Only an ‘interested person’ can make an application for a bail application. Section 51 of the Bail Act 2013 (NSW) defines an ‘interested person’ as:

  • The accused person granted bail;
  • The prosecutor;
  • The complainant in a domestic violence offence;
  • The person for whose protection to order was made, if the bail was granted under the Crimes (Domestic and Personal Violence) Act 2007 (NSW);
  • The Attorney-General.

  Under section 53(1)(b) of the Bail Act 2013 (NSW), a court or authorised justice who can hear a bail application, can also hear an application to vary bail conditions.

  Section 53 of the Bail Act also allows the court to vary bail conditions without a bail variation application. This can only be used when a bail condition is more onerous than necessary to mitigate the unacceptable risk and when an accused person appears in court.

  When can you make a bail variation application?

  You can make a bail variation application at any time as long as reasonable notice is provided to the court and prosecution. Generally, reasonable notice is three working days. If someone other than an accused person makes an application, they must give the accused reasonable notice under section 51(6) of the Bail Act 2013.

  What bail 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).

  Bail variation factors

  Bail variation applications are determined based on whether the change sought will enliven an unacceptable risk.

  This is based on bail concerns of:

  • Flight;
  • Commit a serious offence;
  • Endanger the safety of victims, individuals or the community;
  • Interfere with witnesses or evidence.

  Examples of bail variations

  Examples of bail variations include:

  • Changes in your conduct conditions such as the frequency of your reporting to police, residence or curfew times;
  • Changes in your security conditions such as the surety or amount of security;
  • Changes in your enforcement conditions such as police conducting drug or alcohol tests or checking your compliance with a curfew.

  How to change bail address?

  You can change your bail address by having your lawyer prepare an application for variation of bail conditions form and filing it with the court. The form needs to include in the bail conditions the new address you will reside at.

  What if I breach my bail conditions?

  Breaching your bail conditions is treated very seriously by Police and the Courts. Police do have the power to arrest you for a breach of bail. However, if the breach is minor, or due to an honest mistake (such as forgetting to report on a particular day), an experienced bail application lawyer can often speak to Police and have them either take no action or issue you with a warning.

  How long does it take to change bail conditions?

  It usually takes at least 3 working days to change your bail conditions. This is because once an application to vary bail conditions has been filed, the court will not list the matter until the prosecution have had time to consider the application.

  Bail variations can be approved by the court sooner if the prosecution consent to the variation sought.

  Application for variation of bail conditions

  The form to complete for an application for variation of bail conditions can be found here.

  How long do bail conditions last?

  If you are granted bail and do not breach your conditions you will remain on bail until the end of the case.

  If you have a legal issue, contact Astor Legal on (02) 7804 2823 or email us at [email protected]