We're here for you 24/7
info@tempuslaw.com.au 0420 446 399
tl bail

Bail Applications

Navigating bail in New South Wales: Understanding the process and recent changes.

If you or someone you love has been charged with a crime in New South Wales, one of your first questions will likely be, "will my loved one be granted bail"?

It's a word that is thrown around a lot, but for many, it's not entirely clear what bail actually means or how it works. The legislative framework governing applications for a grant of bail can be incredibly complex and difficult to follow. Luckily, we're here to help break down what bail is, how it's decided, and what you need to know if you or your loved one is facing.

Bail is a fundamental aspect of our criminal justice system.

It is a legal concept that allows individuals accused of crimes to be released from custody pending the finalisation of their proceedings. Bail serves to uphold the presumption of innocence and ensure that an accused person is not unnecessarily detained before their guilt is determined.

Put simply, the Court will allow you or your loved one to remain in the community, subject to conditions you or they must follow until the case is finished.

New South Wales

Types of bail

There are various types of bail arrangements available to an accused person.

They include:

Police Bail:

This is granted at the discretion of the Police during the charge process. It allows an accused person to be released into the community pending their first court appearance.

It is often subject to conditions, such as reporting to a police station or staying at a specific address.

Failing to comply with these conditions can lead to arrest and stricter bail terms.

Court Bail:

This is granted by a Court after an accused person has been charged.

  1. Conditional Bail:
    This type of bail includes specific conditions that an accused person must comply with.
  2. Unconditional Bail:
    This type of bail does not carry any additional conditions beyond attending Court when required.

If bail is granted by a bail authority, there is a presumption that an accused person's bail will continue until it is either revoked by a bail authority, or the substantive criminal charges have concluded.

tempus law fair fees

Contact us!

Fair Fees. Flexible Options.
Real Support.

Expert Legal Services Across All NSW Courts.

Get in touch today to discuss how we can help, on your terms.

Get in Touch

Bail Applications Frequently Asked Questions

Obtaining bail - What does the Court consider?  

The process of applying for and obtaining bail requires consideration of several factors which aim to balance the interests of justice and public safety, against the rights of an accused person.

What is the "show cause" requirement?  

The 'show cause' requirement primarily applies to accused persons charged with certain serious offences. It requires a court to refuse a grant of bail unless the accused person can show cause why their continued detention is not justified.

Offences to which the show cause requirement applies include (but is not limited to) an offence that is punishable by life imprisonment (such as murder), serious indictable offences that involve sex with a person under the age of 16, and serious personal violence offences (including when committed by an accused person while on bail).

How can someone "show cause"?  

The Bail Act 2013 ("the Act") does not specify what will satisfy the "show cause" test.

An accused person may rely upon several factors to show cause that their continued detention is not justified.

This may include:

  • The need to care for an ill relative,
  • A medical condition or reason why an accused person requires ongoing care and treatment,
  • The unlikelihood of receiving a full-time imprisonment sentence,
  • An inherent weakness in the Prosecution case,
  • The need to attend impatient rehabilitation,
  • Any anticipated delay in the substantive criminal charges,
  • The need for the accused person to be at liberty to adequately prepare their defence,
  • Any hardship experienced by others,
  • The need to continue to work.

This is a high threshold which must be satisfied for certain serious offences. If you are unable to met this threshold, the Court will not even consider the unacceptable risk test set out below.

What is the "unacceptable risk" test?  

An 'unacceptable risk' occurs when a court cannot be satisfied that the risk identified can be adequately mitigated by the proposed bail conditions and, it is often on this basis, that bail is refused.

The 'unacceptable risk' test is applied to all bail applications.

It requires a Court to assess any bail concerns associated with the accused person and, on the basis of that assessment, determine whether there is an unacceptable risk that the accused person would:

  • Fail to appear at Court or leave the jurisdiction,
  • Commit a serious offence while on bail,
  • Endanger the safety of the victims or the community in general,and/or
  • Interfere with witnesses or evidence.

In practice, it is common for the prosecution to raise one or more of the above risks.

It is important to remember that the mere presence of one of the above-mentioned risks is insufficient to establish that an accused person poses an unacceptable risk. It must be established, by the prosecution, that the risk(s) amount to an unacceptable risk which cannot be adequately ameliorated or mitigated to an acceptable level, by the enforcement of any bail conditions.

What is the assessment of bail concerns?  

In making an assessment of the bail concern, the Court is guided by a list of considerations pursuant to s 18(1) of the Act.

These includes:

  • The accused person's background, including their criminal history, circumstances, and community ties,
  • The nature and seriousness of the offence,
  • The strength of the prosecution case
  • Whether the accused person has a history of violence,
  • Whether the accused person has previously committed a serious offence while on bail,
  • Whether the accused person has a history of compliance or non-compliance with any Court orders, including bail orders,
  • Whether an accused person has any criminal associations,
  • The length of time an accused person is likely to spend in custody if convicted of the offence,
  • How long the accused person is likely to spend in custody if bail is refused,
  • Any special vulnerability or needs of the accused person,
  • The need for an accused person to be free to prepare for his or her appearance in Court,
  • The need for an accused person to be free for any other lawful reason, and
  • The accused person's behaviour towards the alleged victim and/or their family.

If, after assessing the bail concerns, a Court is satisfied that bail conditions may be enforced to ameliorate or mitigate any risk to an acceptable level, the accused person may then be released on conditional bail until their next court appearance. Only bail conditions which are reasonably necessary, appropriate to address the bail concerns, reasonably practical to comply with, and no more onerous than necessary will be enforced by a Court: s 20A.

If it is established that no bail conditions can be enforced to adequately ameliorate or mitigate any bail concerns to an acceptable level, the Court must refuse bail and remand the accused person into custody.

What are common bail conditions?  

It may include any of the following conditions:

  • Conduct requirement - That the accused person do or refrain from doing anything. For example:
    • To attend Court.
    • To report to a police station on a regularly basis (e.g., daily, three times per week, once weekly).
    • To remain at a certain address (full-time or with a curfew requirement).
    • To reside at a specific place.
    • Not to attend or approach certain places.
    • To forfeit their passport.
    • Not to contact or approach certain protected persons and/or associate with certain persons.
    • Not to consume any alcohol or illicit drugs.
  • Security requirement - That a form of security be provided by an accused person, or an acceptable person, in the event that the accused person fails to attend court. This condition may include:
    • An agreement to forfeit a specified sum of money,
    • A deposit of a sum of money or other acceptable security with a Court.
  • Character acknowledgement - An acceptable person provides a written acknowledgement that they regard the accused person to be likely to comply with their bail acknowledgement.
  • Accommodation requirement - This is a requirement that suitable arrangements are made for the accommodation of the accused person. Once a residential address is nominated, the accused person must reside at this address.
  • Accompaniment requirement - That the accused person is released into the care or company of a specified person.
  • Enforcement condition - This condition requires an accused person comply with the directions of police. For example, that the accused person submit to random breath or urinary analysis.

A grant of bail following a conviction and before sentencing  

On 21 June 2022, the Bail Amendment Act No. 27 was introduced into the New South Wales Parliament and expediently passed through both Houses. The Act introduced a new s 22B into the Bail Act 2013 (NSW) which provided a presumption against bail in certain situations. The effect of this provision was to limit the imposition or continuation of bail during the period following conviction and before sentencing for certain offences.

Section 22B applies to a person who has either pleaded guilty or has been found guilty of an offence for which that person will be sentenced to full-time imprisonment. It will not apply where the Court might sentence the person to a penalty other than full-time imprisonment.

This section will only apply to a detention application made by the prosecution, or a release application made by the defendant.

What is the test?

If this section applies, the Court must be satisfied that:

  • The defendant will be sentenced to imprisonment to be served by way of full-time detention.
  • If the offence is a show cause offence, the defendant has not demonstrated that special or exceptional circumstances exist to justify a decision to grant bail or continue a defendant's bail.
  1. Full-time imprisonment
    • The prosecution must establish that, despite any subjective case advanced by the defendant at the sentencing hearing, that there is no alternative disposition than a sentence of full-time imprisonment.
    • In practice, this means that the Court must be confident that the defendant will be sentenced to a term of full-time imprisonment. That there is no alternative disposition other than full-time imprisonment.
  2. Special or exceptional circumstances
    • If the Court is satisfied that there is no alternative disposition other than full-time imprisonment, the defendant must show that there exist 'special or exceptional circumstances' justifying a decision to grant bail or to continue their bail.

This is a very high threshold for a defendant to establish.

The Bail Act does not provide any exhaustive list of what may constitute special or exceptional circumstances. Recent decisions have found that it could be one factor or a combination of factors that are sufficient to establish special or exceptional circumstances.

How long does it take to apply for bail?  

Pursuant to s 71 of the Act, bail applications are to be heard as soon as reasonably practicable. This will usually occur on the first appearance date.

Can I vary the conditions of my bail?  

An application may be made to the Court to vary the conditions of your bail at any stage of the proceedings.

What happens if my bail is refused?  

If you are refused bail or if you are unable to meet your bail conditions, you will be remanded into custody. You are entitled to apply to the Supreme Court for Supreme Court bail.

Can I make multiple applications for bail?  

Any further application for release in the Local Court of New South Wales is not permitted unless the accused person is able to establish that there are grounds to make another application. Section 74(3) of the Act specifies that the grounds for a further release application are:

  • If the accused person was not legally represented when the previous application was dealt with and the accused person now has legal representation.
  • Material information relevant to the application is to be presented in the application that was not presented to the court in a previous application.
  • Circumstances relevant to the application have changed since the previous application was made.
  • The person is a child, and the previous application was made on the first appearance for the offence.

If you are unable to fit any of the abovementioned criteria, you are entitled to make an application for bail to the NSW Supreme Court.

Can I apply to the Supreme Court for bail?  

It is critical that you have the right legal team behind you when making any application for release on bail from a very early stage in the proceedings.

Having an experienced criminal lawyer behind you may help to bolster your chances at success.

If your loved ones are remanded into custody and are seeking to make an application to the Supreme Court, it is imperative that you speak with our experienced criminal lawyer before filing the application.

We're here to help and guide you through that process.

What happens if I don't comply with my bail conditions?  

If an accused person breaches a condition of their bail, they may be arrested by police and taken into custody. The accused person will then be brought before a Court where their bail may be revoked, or further stringent conditions placed against the accused person.

If, while on bail, an accused person fails to appear in Court, as required, the judicial officer may:

  • Issue a warrant for their arrest.
  • Order that any amounts placed on surety be forfeited.
  • Revoke your bail.

Bail isn't about guilt or innocence - it's about managing risks until a case is resolved. It can be the difference between continuing your normal life or sitting in a gaol cell waiting for your day in Court.

If you or your loved one is facing criminal charges, understanding your rights around bail is crucial - and getting the right legal support can make all the difference.

Need help with a bail application?  

Speak to an experienced criminal lawyer as soon as possible. Bail decisions happen quickly - don't leave it to chance.