In New South Wales, bail is the process of being released from custody while awaiting your court hearing for criminal charges. Bail is not guaranteed, and a court will decide whether to grant it based on factors like flight risk and the seriousness of the charges.
If you are arrested and charged with a criminal offence, the police will decide whether to release or detain you. From here you might be:
- Released on bail on the condition that you attend court on the allocated hearing date, with or without other bail conditions; or
- Refused bail and detained in custody.
If you are detained, you can apply to the court for bail and will be taken to the closest Local Court as soon as possible to do so.
Given that court processes can take months, even years, the grant of bail is a significant consideration for those facing the criminal justice system.
The following provides an overview of the bail process in New South Wales. The information is general only and we strongly recommend you obtain advice relevant to your circumstances from a qualified professional.
How is a bail application considered?
The process of applying for and being granted bail in New South Wales is governed by the Bail Act 2013 (NSW). The legislation attempts to balance the presumption of innocence until proven guilty with the need to ensure safety within the community.
For bail to be granted, two tests must be considered and passed:
- whether there is a need for the applicant to show cause (the show cause test); and
- whether there are unacceptable risks in granting bail (also known as bail concerns)
The show cause test
The show cause test applies to a range of offences listed in s 16B of the Act. These include but are not limited to, serious sexual assaults and personal violence offences, certain serious drug dealing and firearm offences, and offences punishable by life imprisonment. For these offences, bail must be refused unless the accused can show that their detention is not justified. The applicant must demonstrate why it would be unjustified for the accused person to remain in custody until/during the court case.
The Bail Act does not list the factors to be considered in meeting the show cause test, which is determined on a case-by-case basis. This test may be satisfied by one exceptional factor or a combination of factors, which might include consideration of the applicant’s criminal history, employment status, family and community ties; the likely delay before the case goes to trial; the strength of the prosecution’s case; the applicable penalty if the accused were to be found guilty and health issues.
Bail concerns
If the show cause test is satisfied, (or is irrelevant because it is not a show cause offence) the court then considers the ‘unacceptable risk’ test (or bail concerns).
In assessing bail concerns, s 18 of the Act prescribes a list of factors that a court is to consider. The court must consider whether there is an unacceptable risk that the accused may:
- fail to appear in court
- commit a serious offence
- endanger a victim or other persons
- interfere with a witness or evidence
If one or more of these risks cannot be mitigated by imposing conditions, then bail is unlikely to be granted.
In determining the existence of an unacceptable risk, the court considers several factors including:
- the personal circumstances of the accused, their community ties, criminal history
- the nature and seriousness of the offence
- whether the accused has a history of violence
- the strength of the prosecutor’s case and how long the accused will spend in custody if bail is refused
Risks of violence or criminal association or previous non-compliance with bail, bail conditions or parole will likely weigh against the applicant.
What happens after the bail hearing?
Bail may be granted with or without conditions. Common bail conditions include:
- regular reporting to the local police
- residing at a specific address
- surrendering a passport
- abiding by a curfew
- not visiting specified places or associating with certain people
Security conditions may also be imposed. This might require the payment of money or relinquishing property to be held by the court as security for the accused person’s appearance in court when required.
Your lawyer will explain any conditions imposed and may offer assistance in making sure these conditions are in place.
If bail is refused the accused is returned to custody pending transportation to prison. In these circumstances, the accused’s lawyer will usually need to arrange to visit later to discuss the outcome and recommend further action.
If bail is refused in the Local Court, a further application may be made through the Supreme Court. Only in limited circumstances, can a person apply for bail again in the Local Court after having the original application refused.
Conclusion
Bail is the process of releasing a person accused of a crime from custody, pending a court hearing. If bail is refused after an accused person is arrested by the police, a bail application can be made to the Local Court. The court will consider a two-step test which involves the assessment of various factors within each. The grant of bail allows an accused person to return to a familiar environment while they prepare for their case.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].