BAIL IN NSW | AMA Legal
What is bail
In NSW, bail is governed by the provision of Bail Act 2013 (Act).
Section 7 of the Act defines bail as authority to be at liberty for an offence.
Who can grant bail?
Upon arrest and charging of the accused, the Police may:
- Release the accused without bail, or
- Grant the accused bail with conditions, or
- Refuse the accused bail.
If the Police refuse bail, the Police must present the accused before a Court as soon as practicable.
At Court, the accused may make a release application.
What does the Court consider
If the accused has been charged with a show cause offence, the onus is on the accused to show cause why their detention is not justified. Section 16B of the Act lists all the offences to which the show cause requirement applies.
The most common scenario which engages the show cause requirement is when the accused is alleged to have committed a serious indictable offence when they are either on bail or on parole.
A serious indictable offence means an indictable offence that is punishable by a term of prison of 5 years or more.
To show cause, the accused can rely on one factor or a combination of factors. The Courts have held the following to be persuasive in determining the accused showing cause:
- Prior good character,
- Past bail compliance,
- Engagement in family life and medical treatment,
- Delay,
- Seriousness of the offences,
- Attending employment, counselling, rehab,
- Strength of the Police case,
- Bail conditions proposed.
If the accused has not been charged with a show cause offence or the accused has overcome the show cause requirement, the Court will then consider if there are any of the following unacceptable risks:
- 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.
To determine unacceptable risks, the Court will consider many factors including:
- The accused background, criminal history, circumstances, and community ties,
- The seriousness of the offences,
- The strength of the prosecution case,
- Whether the accused has a history of violence,
- Whether the accused has committed any offences while previously on bail,
- The accused history of bail compliance,
- The accused criminal associations,
- The length of time the accused will stary in custody pending trial,
- Special needs of the accused whether due to age or mental health,
- The need for the accused to be free to prepare for to defend the charge or for any other lawful reason.
If the Court makes a finding that there are any unacceptable risks, then the Court must refuse bail.
If the Court makes a finding that there are bail concerns that do not raise to the level of unacceptable risk, then the Court can impose conditions to ameliorate any bail concerns. Bail condition can include:
- Residence condition,
- Reporting condition,
- Curfew condition,
- Non association condition,
- Abstinence condition,
- Surety condition,
- Restriction on movement condition,
- Electronic monitoring condition,
- Restriction on communication condition,
- Enforcement condition.
The accused can only make one release application to the Local Court unless there is any exception under section 74 of the Act.
If the accused has been bail refused at the Local Court, the accused has the right to make a release application to the NSW Supreme Court.
The key to a successful bail application is preparation and presenting the Court with material sufficient to overcome the different hurdles the accused faces.
The above should not be treated as legal advice but general information.
To obtain advice on your RIGHTS, call AMA Legal on (02) 8610 3764.
