Will my family member get bail?

The starting point: a presumption in favour of bail

Different provisions of the Bail Act 2000 apply in different circumstances. As a starting point, and consistent with the presumption of innocence, the Bail Act 2000 favours the grant of bail. In most cases, it is the Police or the Crown who are required to satisfy the Court that there is just cause to keep your family member in custody, rather than your family member having to justify their release.

In some cases, however, this position is reversed, and it becomes your family member’s task to satisfy the Court that they should be released on bail. This is known as a reverse onus.

Does the Crown oppose bail?

Part of the equation is also whether the Police or Crown are opposed to your family member getting bail, and if so, for what reason are they opposed? If the Police or Crown are not opposed, it usually makes the task of getting bail much easier; however, it is ultimately a matter for the Judge to decide whether bail is appropriate.

Identifying the relevant provisions

Identifying the relevant provisions of the Bail Act 2000 is important. This will determine whether the onus is on the Police or the Crown to show the Court that there is just cause for continued detention pursuant to s 8 of the Bail Act 2000. This involves an assessment of three main risks:

• Whether your family member will fail to attend his or her next Court hearing;
• Whether your family member will interfere with witnesses or evidence; or
• Whether your family member will offend while on bail.

When does a reverse onus apply?

In some cases a reverse onus applies. What that means is that it now becomes your family member’s task (or their Barrister’s task on their behalf) to satisfy the Judge that something will not occur, rather than the Crown having to prove the opposite.

For example, if your family member is charged with a serious Class A drug dealing offence, your family member will need to satisfy the Judge that they will not, while on bail or at large, commit any drug dealing offence. Reverse onus provisions, such as those found in sections 10, 12, 13, 16, and 17A of the Bail Act 2000, apply in a range of circumstances, including where a person has a relevant previous conviction and is charged with a further specified offence, where a person has already been found guilty and is awaiting sentence, or in certain drug dealing cases. These provisions can make it significantly more difficult for your family member to get bail.

Bail conditions

Bail conditions are an effective tool to increase the chance of your family member being granted bail. In some cases, if strict bail conditions such as a curfew, non-association conditions, or restrictions on travel are suggested, the Court may grant bail as the bail conditions can be seen to reduce the risks under s 8 of the Bail Act 2000.

Types of bail

There are two types of bail in New Zealand.

The first is bail simpliciter, which is the grant of bail without electronic monitoring.

The second is electronically monitored bail ("EM bail"), which is the grant of bail with electronic monitoring conditions. EM bail is usually sought and granted in cases where bail simpliciter has been deemed unsuitable. This could be due to the nature or seriousness of the charges that your family member faces, or due to previous non-compliance with Court orders.

If your family member is declined bail simpliciter, the logical next step is to pursue EM bail. EM bail has other pre-requisites, such as the availability of an address that is deemed to be suitable by the Department of Corrections.

A fact-specific question

So, whether your family member will get bail is a heavily fact-specific question, and depends on the charges involved, which provisions of the Bail Act 2000 apply, your family member’s history, and the strength of the case that can be put before the Court.

Early advice and representation is crucial before you apply for bail. Harry has extensive experience acting in bail applications, including bail simpliciter and EM bail, across a wide range of charges.