Local Court Bail
The bail laws in NSW are governed by the Bail Act 2013 (NSW).
The first bail consideration usually occurs at a police station after someone is charged. The police will form a view (based on the the factors below) whether they should refuse or grantbail.
If a person is refused bail by the police the person must be brought before a court as soon as practicable.
In order to receive bail the accused person (“the applicant”) must make a release application before a magistrate. The magistrate will adopt a risk management approach to determine whether or not bail is appropriate. This is known as the “unacceptable risk” test.
The “unacceptable risk” test requires the court to first determine whether an applicant poses bail concerns. Next, the court will consider whether these bail concerns can be adequately addressed by imposing bail conditions. The court will then make an overall assessment as to whether the applicant poses an “unacceptable risk”. If the magistrate concludes there is an unacceptable risk, bail is refused. If the magistrate concludes there is no unacceptable risk, bail will be granted with or without conditions depending on the bail concerns present in each case.
What are “bail concerns”
A “bail concern” is a concern that if the applicant is released from custody they will:
- Fail to appear at any court proceedings for the offence
- Commit a serious offence
- Endanger the safety of victims, individuals or the community; or
Factors relevant in considering bail concerns
In determining the issue of bail concerns, the Magistrate may consider the following matters:
- The accused person’s background, including criminal history, circumstances and community ties,
- The nature and seriousness of the offence,
- The strength of the prosecution case,
- Whether the accused person has a history of violence,
- Whether the accused person has previously committed a serious offence while on bail,
- whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,
- whether the accused person has any criminal associations,
- the length of time the accused person is likely to spend in custody if bail is refused,
- the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
- if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
- any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
- the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,
- the need for the accused person to be free for any other lawful reason,
- The conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,
- in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,
- the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.
- whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900,
- the likely effect of the offence on any victim and on the community generally,
- the number of offences likely to be committed or for which the person has been granted bail or released on parole.
The magistrate may then consider whether there are any bail conditions that could reasonably be imposed to address any bail concerns. Bail conditions must be:
- Reasonably necessary to address a bail concern
- Reasonable and proportionate to the offence for which bail is granted
- Appropriate to a bail concern
- No more onerous than necessary to address a bail concern
It must also be reasonably practicable for the applicant to comply with the bail condition and there must be reasonable grounds to believe that the applicant will comply with the condition.
Some common bail conditions include:
- Report to police every day
- Live at a specific address
- Obey a curfew
- Not associate with certain people
- Not go within a certain distance of a specific place
- Surrender your passport
Determining whether there is a “unacceptable risk”
There is an unacceptable risk mandating the refusal of bail if:
- The magistrate concludes that there are no bail conditions that could be reasonably imposed to address any of the bail concerns.
There is not an unacceptable risk and the person must be released if :
- there are no bail concerns; OR
- There are bail concerns but conditions can be reasonably imposed to address these bail concerns
If there is no unacceptable risk, the applicant can be released with or without bail conditions, without bail, or by the magistrate dispensing with bail.
“Show Cause” Offences
For certain serious offences, an applicant must show cause why his or her detention is not justified.
If the applicant fails to show cause, bail must be refused.
If the applicant shows cause, the magistrate must then consider any bail concerns, bail conditions and whether there is an unacceptable risk (as above).
If the magistrate refuses to grant bail
If the magistrate refuses to grant a person bail they may make an application to the Supreme Court for bail.FREE ENQUIRY NOW