Bail
New South Wales’ bail laws are governed by the Bail Act 2013. The Courts are now required to strictly apply the Bail Act 2013 when making bail decisions.
The Bail Act 2013 at Section 8 gives the Court power to:
- Release the person without bail for the offence, or
- Dispense with bail, or
- Grant bail (with or without the imposition of bail conditions), or
- Refuse bail (with the defendant held on remand until the outcome of their criminal matter)
How Does A Court Decide Whether To Grant Bail?
The Bail Act 2013 requires the Court to engage with a two-step process before deciding whether to grant bail.
Step 1 – ‘Show Cause’ Test:
The first step is known as the ‘Show Cause Requirement’. If a defendant is charged with a ‘Show Cause’ offence as defined under Section 16B of the Bail Act 2013, they need to demonstrate to the Court (‘show cause’) why their detention is not justified. If a defendant has not been charged with a show cause offence, they are not required to show cause as to why their detention is not justified and need only address the court on whether there is an unacceptable risk present should bail be granted.
The ‘show cause’ requirement applies to serious criminal offences including but not limited to offences punishable by life imprisonment (murder and certain serious drug offences, terrorism and child sexual offences), serious indictable sexual offences including sexual intercourse with a person under 16 and other serious indictable offences under the Weapons Prohibition Act and Drug Misuse and Trafficking Act. Please find the full list of ‘show cause offences’ under Section 16B of the Bail Act 2013 here.
The show cause test only applies to offences deemed as ‘show cause’ offences under Section 16B of the Bail Act 2013. If a person fails to show cause, they will be refused bail in accordance with Section 16A(1) of the Act. If a person shows cause and establishes that their detention is not justified, the unacceptable risk test will apply to assess any concerns the Court has regarding the granting of bail (known as ‘bail concerns’).
Bail Concerns:
The Bail Act 2013 provides an exclusive list of matters which are taken to be ‘bail concerns’ at Section 17(2). The matters contained in Section 17(2) are the only matters which the Court are to consider as bail concerns that can result in the refusal of bail:
- Fail to appear at any proceeding for the offence, or
- Commit a serious offence, or
- Endanger the safety of victims, individuals or the community, or
- Interfere with witnesses or evidence.
Step 2 – Unacceptable Risk Test
The Court must determine whether there are any concerns in granting bail to the defendant, and whether these concerns create an unacceptable risk, or whether such concerns can be addressed through imposing bail conditions.
In determining bail concerns, the Court is required to only consider the factors as listed in Section 18(1) of the Bail Act 2013. One of these factors is the likelihood of a custodial sentence being imposed if convicted, with others including whether the defendant has any criminal associations, the nature and seriousness of the offence, whether there is any history of violence and any special vulnerability of the defendant (to name a few).
If any bail concerns are present, the Court is then required to determine whether such concerns create an unacceptable risk of one or more of the bail concerns or whether these risks can be addressed and mitigated by imposing bail conditions. Bail is only to be refused if the risk involved in granting bail is deemed unacceptable in accordance with Section 19 of the Bail Act 2013.
How Likely Is Bail To Be Granted?
The likelihood of bail being granted to a person depends on the seriousness of the matter, including whether the ‘show cause’ requirement applies, a person’s prior criminal history or lack thereof and the proposed bail conditions. An application for bail requires a technical application of the Bail Act 2013 and an understanding of the guiding principles and cases relevant to the unique circumstances of the matter. Obtaining legal advice/and or representation would be beneficial where someone is seeking bail.
Bail Conditions
If any bail concerns are present, the Court is required to determine whether such concerns amount to an unacceptable risk or whether such risks can be addressed and mitigated by the imposition of bail conditions.
In imposing conditions, the Court needs to be satisfied that the proposed conditions are consistent with the considerations listed at Section 20A(2) of the Bail Act 2013. Some common bail conditions include:
- Conduct conditions – that the defendant do or refrain from doing anything, including:
- Appear at Court on specified date,
- Abstinence restrictions – restricted from consuming drugs/alcohol and/or requirement to submit to random testing,
- Contact restrictions – restricted from contacting witnesses or victims,
- Location restrictions – restricted from entering the locality of where the offence was committed,
- Residential restrictions – restricted to reside at a certain address,
- Curfew restrictions – restricted from being away from certain address between certain times,
- Reporting conditions – reporting to Police at different intervals during the week,
- Surrender of passport.
- Security – that the defendant or an acceptable person offer to forfeit an amount of money if the defendant fails to attend Court in accordance with their bail. This condition is only applied regarding the bail concern of failure to appear.
- Character Acknowledgment – that an acceptable person provide a written acknowledgement to the Court that they consider the accused to be a responsible person who is likely to comply with their bail conditions if released.
Can I Apply For Bail More Than Once To The Local Court?
Where bail has been refused in the Local Court, the accused is prevented from making another release application in the Local Court unless there are grounds for further release in accordance with Section 74(1) of the Bail Act 2013.
The grounds for further release are listed at Section 74(3) and include:
- Where the defendant was unrepresented at the previous application and now has legal representation,
- Material information relevant to the grant of bail was not presented in the previous application,
- Circumstances relevant to the grant of bail have changed since the previous application, or
- The person is a child and the previous application was made on a first appearance for the offence.
Supreme Court Bail Applications
Where a defendant has been bail refused in the Local Court, they may apply to the Supreme Court. The Supreme Court has the power to grant bail when such has been refused by another court in accordance with Section 66 of the Bail Act 2013. A defendant only has one opportunity to make a bail application before the Supreme Court.
Similarly with a second bail application to the Local Court, the Supreme Court will only hear release applications where there are grounds for further release in accordance with Section 74(3) as listed above.
As the Supreme Court is the highest Criminal Court in the NSW Court hierarchy that is vested with the jurisdiction to deal with bail (except for appeals against bail decisions in the Supreme Court which are heard in the NSW Court of Criminal Appeal). Accordingly, a Supreme Court Bail Application is more formal than a Local Court application and requires an application and written material in support to be filed at the Registry before the application will be heard.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Sophie Ogborne
Sophie Ogborne has a Bachelor of Laws from University of Wollongong and a Graduate Diploma of Legal Practice from the College of Law. She was admitted to practice in New South Wales in 2020. Sophie has experience in criminal law, civil law, family law and in the criminal and equity divisions of the Supreme Court. Sophie now practices exclusively in...