Bail

In New South Wales (NSW), bail laws are governed by the Bail Act 2013. The purpose of the Bail Act is to provide a fair and just system for determining whether a person who has been charged with a criminal offence should be granted bail or held in custody until their hearing, trial or sentence. 

Under the Bail Act, a person who is charged with a criminal offence is entitled to bail unless there is an unacceptable risk that they will fail to appear in court, commit further offences, endanger the safety of any person or interfere with witnesses or evidence.

The Bail Act provides for different types of bail, including police bail, court bail and conditional bail. Police bail is granted by the police, while court bail is granted by a court. Conditional bail may be granted with certain conditions attached, such as a requirement to report to police regularly or to stay away from certain people or places.

Unnacceptable Risk Test

In order to be successful in a bail application, you must show the court that you pose no unacceptable risks to the community or that conditions can be imposed to mitigate any unacceptable risk the court may have. 

Section 17 of the Act states the four main unacceptable risks the court needs to take into account as follows:

• A bail authority must, before making a bail decision, assess any bail

• For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will

  • fail to appear at any proceedings for the offence, or

  • commit a serious offence, or

  • endanger the safety of victims, individuals or the community, or

  • interfere with witnesses or evidence.

If you can show by either your conduct or the imposition of certain conditions, that you will not satisfy one of the unacceptable risks above, you will be granted bail. 

What conditions can be imposed to reduce any unacceptable risks?

There is no set list of conditions that can be imposed however, some examples include: 

• Surety (money) paid to the court as security until your matter is finalised. 

• Forfeiting your passport.

• Reporting to the local police several days a week.

• Living at an alternative address. 

• Having a responsible person live with you to keep an eye on you and ensure you are complying. 

• Abstaining from the use of alcohol or drugs.

Show Cause Offences

In most cases, you will only be required to pass the unacceptable risk test however, there are certain offences where, if charged, you will need ‘show cause’ to the court as to why your detention is unjustified. This means that you will need to pass the show cause test, then the unacceptable risk test to be successful in a bail application. 

Section 16B of the Act lists the offences to which show cause applies as follows: 

• an offence that is punishable by imprisonment for life,

• a serious indictable offence that involves—

  • sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or

  • the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years,

•  a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence,

• any of the following offences—

  • a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a firearm,

  • an indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place,

  • a serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm,

• any of the following offences—

  • a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon,

  • an indictable offence that involves the unlawful possession of a military-style weapon,

  • a serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon,

• an offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act,

• an offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code,

• a serious indictable offence that is committed by an accused person—

  • while on bail (whether granted under this Act or a law of another jurisdiction), or

  • while on parole (whether granted under a law of this State or another jurisdiction),

• an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order,

• a serious indictable offence of attempting to commit an offence mentioned elsewhere in this section,

• a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section,

• a serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under—

  • this Act, or

  • Part 7 of the Crimes (Administration of Sentences) Act 1999, or

  • the Criminal Procedure Act 1986, or

  • the Crimes (Sentencing Procedure) Act 1999.

Where can I apply for bail ?

Your initial bail application will be made to the Local Court of New South Wales. If your application is denied, you can then make an application to the Supreme Court of New South Wales who will consider your application. 

Before making an application to the Supreme Court of New South Wales, you must first be denied in the Local Court of New South Wales. 

In the Supreme Court of New South Wales, your application will be heard by a Supreme Court Judge as opposed to a Local Court Magistrate. 

A Supreme Court application is usually a 4-6 process much more complex and includes the filing of submissions between parties and a more formal hearing. In some cases, your Supreme Court application can be heard sooner depending on the circumstances.

How many bail application can I make?

There is no limit on how many bail applications you can make in any court. However, in order to be able to make a secondary application, you must first pass the test under section 74 of the act showing a change of circumstances.

A change of circumstances amounts to the following:

• the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

• material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

• circumstances relevant to the grant of bail have changed since the previous application was made, or

• the person is a child and the previous application was made on a first appearance for the offence.

If you can show that one of the above is satisfied, then you will be entitled to make a further application for bail.