In New South Wales, when a person is charged with criminal offences they may be granted bail under the Bail Act 2013. Bail is the conditional release of an accused person before their matter has been finalised. This page outlines the laws surrounding applying for bail in New South Wales.
Who grants bail?
Bail may be granted by the police or by a court. When an adult is charged with offences and refused bail by the police, they will usually be brought before the Local Court and given the opportunity to apply for bail. When a young person is refused police bail, they will be brought before the Children’s Court.
Unacceptable risk
A person will only be granted bail in New South Wales if they pass the ‘unacceptable risk’ test. Under section 19 of the Bail Act 2013, bail must be refused if there is an unacceptable risk that the accused, if released, will:
- fail to appear in court
- commit a serious offence
- endanger the safety of victims, individuals or the community
- interfere with witnesses or evidence.
If a person is assessed as posing an unacceptable risk, they will not be released on bail. In assessing whether a person poses an unacceptable risk, the court will consider the factors below.
What is considered when applying for bail?
Under section 18 of the Bail Act 2013, when a person applies for bail, the following matters will be considered:
- their background, including any criminal history, circumstances and community ties
- the nature and seriousness of the offence
- the strength of the prosecution case
- whether they have a history of violence
- whether they have previously committed a serious offence while on bail
- whether they have a history of compliance or non-compliance with orders
- whether they have criminal associations
- the length of time they are likely to spend in custody if bail is refused
- the sentence they are likely to receive if found guilty
- if the accused is appealing against a decision, the prospects of success of the appeal
- any special vulnerability the accused has because of being Indigenous or having a cognitive or mental health impairment
- their need to prepare for their court appearance and get legal advice
- their need to be free for any other lawful reason
- their conduct towards any victims after the offence
- if the offence is serious, the views of the victims as to whether their release would pose a danger
- the conditions that could reasonably be imposed to address any bail concerns
- whether they have ant associations with a terrorist organization
- whether they have advocated terrorist acts or violent extremism or has associations with those who have done so.
Applying for bail on a ‘show cause’ offence
If a person is charged with certain serious offences, including murder and child sex offences, they must ‘show cause’ why their ongoing detention is not justified. In other words, there is a presumption that a person in this situation will not be granted bail. The onus is on the defence to overcome this presumption.
The ‘show cause’ requirement does not apply to an accused person who is under 18.
Bail conditions
If a court or the police have concerns about granting a person bail, they may impose bail conditions to alleviate these concerns. Any conditions that are imposed must be appropriate, reasonably necessary and proportionate to the offence/s charged. The conditions must be no more onerous than necessary to address the bail concern and it must be reasonably practical for the accused to comply with the conditions.
If the court has concerns about granting bail, it will assess whether there are conditions that could address these concerns. For example, if a person is considered a flight risk, a condition that they surrender their passport and report to the local police regularly may mitigate this concern. If there are no conditions that could reasonably address the bail concerns, bail will be refused.
Young person applying for bail
When a person under 18 applies for bail, the same processes that are set out above will be followed. The court will also consider the principles set out in section 6 of the Children (Criminal Proceedings) Act 1987.
A young person is not required to ‘show cause’ when charged with a serious offence.
Applying for bail in the Supreme Court
In some circumstances, a person who applies for bail must do so in the Supreme Court. This is the case where the person is facing charges that will be dealt with in that court or where they have been refused bail by a magistrate.
In the Supreme Court, a bail application must be made by filing an Application for Bail Form, which must be served on the prosecution and any person with whom it is proposed that the accused live if granted bail and any person who is proposed to provide a bail surety.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
