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:
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:
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:
To determine unacceptable risks, the Court will consider many factors including:
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:
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.