Bail in NSW is the process that allows a person accused of a criminal offence to remain in the community while they wait for their court hearing.
Bail does not mean a person has been found guilty or innocent. It allows an accused person to continue their daily life while the criminal justice process continues.
A court does not automatically grant bail. The court considers several factors, including the seriousness of the charges, the risk of the accused failing to attend court, and any potential risk to the community.
This article explains the bail application process in NSW, including the tests courts apply, possible bail conditions, and what happens after a bail decision.
The information in this article is general only. You should obtain legal advice that applies to your circumstances.
What Happens After You Are Arrested in NSW?
If police arrest and charge you with a criminal offence, they will decide whether to release you or keep you in custody.
Police may:
- Release you on bail with conditions and require you to attend court on a specific date; or
- Refuse bail and keep you in custody until you appear before a court.
If police refuse bail, you will usually appear before the Local Court as soon as possible to make a bail application.
Because criminal matters can take months or even years to resolve, obtaining bail can have a significant impact on an accused person’s life.
How Does a Bail Application Work in NSW?
The Bail Act 2013 (NSW) sets out the legal framework for bail applications in New South Wales.
The law aims to balance two important principles:
- The presumption that a person is innocent until proven guilty; and
- The need to protect the community and ensure accused people attend court.
When deciding whether to grant bail, the court applies two main tests:
| Bail Test | What the Court Considers |
|---|---|
| Show cause test | Whether the accused must explain why their detention is not justified. |
| Unacceptable risk test | Whether any risks can be managed if bail is granted. |
The Show Cause Test
The show cause test applies to certain serious offences listed in section 16B of the Bail Act 2013 (NSW).
These offences may include:
- Serious sexual offences;
- Serious personal violence offences;
- Certain firearm offences;
- Serious drug supply offences; and
- Offences carrying a potential life imprisonment sentence.
For these offences, the accused person must show why keeping them in custody would not be justified.
The Act does not provide a fixed list of factors for this test. Instead, the court considers the circumstances of each individual case.
Factors that may support a show cause application include:
- The accused person’s criminal history;
- Employment and community connections;
- Family responsibilities;
- The expected delay before the matter reaches trial;
- The strength of the prosecution case;
- The likely penalty if the person is convicted; and
- Any relevant health issues.
The Unacceptable Risk Test
If the show cause test does not apply, or the accused satisfies it, the court considers whether unacceptable risks exist.
Under section 18 of the Bail Act 2013 (NSW), the court considers whether the accused person may:
| Potential Risk | Example |
|---|---|
| Fail to attend court | The accused may not appear on the required court date. |
| Commit a serious offence | The accused may pose a risk of further offending. |
| Endanger safety | The accused may pose a risk to a victim or another person. |
| Interfere with evidence | The accused may contact witnesses or affect the evidence. |
If the court cannot manage these risks through bail conditions, it may refuse bail.
Factors the Court Considers in a Bail Application
When assessing bail, the court considers the accused person’s circumstances and the details of the alleged offence.
Relevant factors may include:
- The accused person’s personal circumstances;
- Family, employment, and community connections;
- Previous criminal history;
- The seriousness of the alleged offence;
- Any history of violence;
- The strength of the prosecution case; and
- The likely time spent in custody if bail is refused.
Previous breaches of bail, parole, or other court orders may negatively affect a bail application.
What Happens If Bail Is Granted?
The court may grant bail with or without conditions.
Common bail conditions include:
- Reporting regularly to police;
- Living at a nominated address;
- Surrendering a passport;
- Following a curfew; and
- Avoiding certain locations or people.
The court may also impose security conditions. These conditions may require the accused person or another person to provide money or property as security for attending court.
A criminal lawyer can explain the conditions attached to bail and help ensure you understand your obligations.
What Happens If Bail Is Refused?
If the court refuses bail, the accused person remains in custody while their matter continues through the criminal justice system.
Their lawyer can discuss the reasons for refusal and advise whether another bail application may be available.
If the Local Court refuses bail, the accused person may be able to apply to the Supreme Court in certain circumstances.
A further Local Court bail application after a previous refusal is only available in limited situations.
Frequently Asked Questions About Bail NSW
How does bail work in NSW?
Bail allows an accused person to remain in the community while waiting for their court matter to be finalised. The court decides whether bail should be granted based on risks and individual circumstances.
Is bail guaranteed in NSW?
No. Police or the court may refuse bail if they believe unacceptable risks exist that cannot be managed with conditions.
How long does a bail application take in NSW?
The timeframe depends on the circumstances of the case, the court involved, and whether further hearings are required.
Can bail conditions be changed?
Yes. In some circumstances, a person can apply to vary their bail conditions if their circumstances change.
Conclusion: Understanding Bail Applications NSW
A bail application in NSW allows an accused person to ask the court for release while their criminal matter continues.
The court applies specific tests and considers factors such as community safety, attendance at court, the seriousness of the charges, and the accused person’s personal circumstances.
Obtaining legal advice early can help you understand your options and prepare the strongest possible bail application.
This information is general only and does not constitute legal advice. You should obtain advice relevant to your circumstances.
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].