Application for Bail in NSW: Your Complete Guide

When facing criminal offence charges in New South Wales (NSW), understanding the bail application process is critical. For many, bail is not just a legal mechanism—it represents the opportunity to secure freedom while awaiting trial. This comprehensive guide breaks down the complexities of bail applications in NSW, equipping you with the information you need to approach the process with confidence.

Key Takeaways:

Know Your Options: Bail applications can be made at different court levels, and the appropriate court depends on your circumstances.
Understand the Criteria: Courts consider various factors, such as strong community ties, a clean compliance history, and a compelling legal argument significantly improve your chances of being granted bail.
The Value of Expertise: Engaging an experienced criminal lawyer can make all the difference in preparing a persuasive bail application and navigating court procedures.

Bail in NSW: A Quick Overview

What Is Bail?

Bail, defined under Section 7 of the Bail Act 2013 (NSW), allows an accused person to be released from custody while awaiting court proceedings. In legal proceedings, it is crucial to consider the protection of the alleged victim, especially in cases involving sexual offences, to prevent undue hardship and ensure their anonymity. It involves conditions designed to ensure their appearance in court and to protect the community.

The Purpose of Bail

Under NSW law, the purpose of bail is to balance the presumption of innocence and general right to be at liberty with the need to protect the community and ensure the accused’s attendance at court. Bail allows individuals to continue their lives outside of custody while ensuring justice is served.

When Can Bail Be Granted?

Bail can be granted at different stages depending on the offence you are charged with, including:

Immediately after being charged by police, at the police station.
Through an application in the Local Court (Magistrates Court) or, in certain cases, the Supreme Court.
Bail is denied if the "unacceptable risk" test under Section 17 and 19 of the Bail Act 2013 is not satisfied. Depending on the type of offence the person has been charged with, there can be more tests that are applied to determine whether or not the person can be granted bail, such as the ‘Show Cause’ test. The Show Cause test is different to the “unacceptable risk test” and poses as another hurdle that is required to be crossed in more serious cases.

Types of Bail Applications

Local (Magistrates) Court Applications

This is the first step for most people. Applications here can often be straightforward but always require preparation. The Local Court plays a crucial role in granting bail for indictable matters, with specific authority vested in Local Court Magistrates during the bail process. The court will consider various factors such as risk to the community and compliance history and other factors in making a bail decision.

Supreme Court Applications

If your bail application is refused at the Magistrates Court, you can escalate the matter to the Supreme Court. Supreme Court bail applications are formal hearings that involve a detailed process where accused individuals usually appear via video link. This process is more complex, often requiring robust legal arguments with a team of lawyers and additional documentation.

Bail Reviews and Appeals

The same Court cannot hear multiple bail applications unless new evidence or circumstances arise, allowing you to potentially make further bail applications. Bail applications refused can be appealed in higher courts. However, they follow a more formal process.

Key Factors Considered in a Bail Application

When determining whether to grant bail, courts in NSW assess multiple factors as outlined in the Bail Act 2013 (NSW). These factors ensure a fair and balanced decision, protecting both the accused’s rights and community safety. Below are the key considerations under Sections 16A, 17, 18, 19, and 20A of the Act.

1. Unacceptable Risk Assessment (Section 17)

The court applies the unacceptable risk test to determine whether the accused poses risks that cannot be mitigated by bail conditions. Risks include:

Failing to appear in court.
Endangering community safety.
Interfering with witnesses or evidence.
Committing further offences if released.

If the court finds an unacceptable risk, bail will be refused. If risks can be managed with conditions, bail will be granted.

2. Show Cause Requirement (Section 16A)

For serious offences, the accused must show cause why their detention is not justified. For example, this test applies to crimes such as:

Serious indictable offences involving violence.
Firearms or weapons-related crimes.
Drug supply, importation, or manufacture offences.

To ‘show cause’, the accused is required to point to factors, alone or in combination, that support a conclusion that their continued detention is not justified. The Court determines this based on all the evidence including but not limited to a combination of personal circumstances and/or expeditious justice. The accused does not need to demonstrate special or exceptional circumstances to show cause . Generally, the following factors are relevant to the show cause test:

Strength of the Crown case.
Delay in proceedings.
Time in custody.
Family vulnerability or needs.
Health issues.

Failure to show cause results in bail being denied unless exceptional circumstances exist.

The ‘unacceptable risk test’ is assessed independently from the ‘show cause test’ and would not necessarily determine the result of either test (DPP v Tikomaimaleya [2015] NSWCA 83).

3. Bail Concerns Considered by the Court (Section 18)

When assessing whether bail should be granted, courts evaluate:

The nature and seriousness of the offence.
The strength of the prosecution’s case.
The accused’s criminal history, including prior bail breaches.
The risk of failing to appear in court.
Potential impact on victims.
The accused’s physical and mental health.

These factors help the court weigh whether releasing the accused would be reasonable and safe.

4. Ties to the Community (Section 18(1)(a))

Strong community ties reduce flight risk and can favour a bail application. Courts consider things such as:

Employment status and financial stability.
Family and dependents.
Length of time living in NSW.
Prior travel history and likelihood of fleeing.

The stronger the accused’s ties to their community, the lower the perceived risk of absconding.

5. Compliance History (Section 18(1)(f))

Courts assess the accused’s past compliance with bail conditions, orders, parole, or good behaviour bonds. A history of failing to comply increases the likelihood of bail refusal.

Conversely, demonstrating a clean record of compliance with previous legal conditions strengthens an application.

6. Special Vulnerability Considerations (Section 18(1)(k))

If the accused is vulnerable due to age, disability, or health, the court considers whether detention would have disproportionate consequences. This applies to:

Juveniles.
Individuals with cognitive and/or mental health conditions.
Aboriginal or Torres Strait Islander persons facing systemic disadvantage in the justice system.

This factor can influence bail decisions where detention could cause undue hardship.

7. Risk Mitigation Through Bail Conditions (Section 20A)

If bail concerns exist, the court may grant bail with strict conditions, such as:

Electronic monitoring to track movements.
Regular police reporting to ensure compliance.
Surrendering a passport to prevent flight risk.
Curfews and non-association orders to limit potential reoffending.

The court grants these conditions where it is deemed reasonably necessary to address the bail concern and proportionate to the offence and that compliance with the condition will be reasonably practicable.

These conditions help balance risk management with the principle of innocent until proven guilty.

Bail conditions may be varied where the accused submits a bail variation application.

Step-by-Step Guide to Applying for Bail

Applying for bail involves several crucial steps, each requiring careful preparation and understanding:

1. Police Determination on Bail

Under Section 43 of the Bail Act 2013 (NSW), when an accused person is arrested, a police officer of or above the rank of sergeant or the responsible officer at the police station determines whether bail will be granted or refused. The police decision is based on statutory criteria, including the seriousness of the offence, the likelihood of reoffending, and potential risks to the community.

If police grant bail, the accused will be released with conditions that must be followed until the court appearance. If bail is refused by police, the accused must be taken before a court as soon as possible for a bail application (Section 46(1)).

2. Court Bail Application

If the police refuse bail, the accused can apply for bail in the Magistrates Court. For more serious offences, applications can be made in the Supreme Court of NSW. The court application requires legal arguments and supporting documentation to demonstrate why bail should be granted.

3. Preparing Your Bail Application

To strengthen the application, the accused (or their lawyer) should prepare essential documents, including, for example:

Character References: From employers, family members, or community leaders.
Proof of Stability: Employment records, proof of residence, or financial records.
Medical or Personal Circumstances: If relevant, documents proving the accused's need for bail due to health or caregiving responsibilities.
Proposed Bail Conditions: Suggestions to mitigate risk, such as electronic monitoring, surrendering a passport, or regular reporting to police.

4. Filing Your Bail Application

The bail application must be submitted to the relevant court, ensuring all forms and supporting documents are complete. A lawyer can assist in drafting and filing the paperwork accurately to avoid unnecessary delays.

5. The Bail Hearing Process

The court will schedule a bail hearing, where both the prosecution and defence will present arguments. The judge or magistrate will consider factors outlined in Sections 17 and 18 of the Bail Act 2013, including:

The seriousness of the alleged offence.
The strength of the evidence against the accused.
Whether the accused has a history of breaching bail.
The likelihood of reoffending if released.
Ties to the community, such as employment or family obligations.
Any special vulnerabilities.

6. Bail Decision and Conditions

After considering all evidence and legal submissions, the court will make one of the following decisions:

Bail Granted: The accused is released with or without conditions.
Bail Granted with Conditions: The court may impose strict conditions, such as curfews, non-association orders, or electronic monitoring.
Bail Refused: The accused remains in custody but may seek a review or appeal the decision under Section 74 of the Bail Act. The accused may appeal the decision to the Supreme Court (Section 66(1)).

7. Seeking a Review or Appeal

If bail is refused, the accused may:

Request a bail review in the same court if new or different circumstances arise.
Apply to the Supreme Court of NSW, particularly for serious offences..

Understanding each step in this process is essential for anyone navigating the bail application system, ensuring they are well-prepared and informed.

What Can You Expect During a Bail Hearing?

Understanding the Bail Hearing Process

A bail hearing is not just a formality or an application form; it is a legal proceeding where both the prosecution and defence present arguments regarding whether an accused person should be granted bail. The process involves the submission of legal arguments, the presentation of evidence, and judicial scrutiny by the magistrate or judge.

Key Stages of a Bail Hearing

Initiating the Application
- The process begins when the accused or their lawyer submits a formal request for a bail hearing. This application sets a hearing date where the court will assess the matter.
Prosecution Arguments
- The prosecution will argue against granting bail, often citing risks such as:
  - The accused failing to appear in court.
  - Potential danger to the community.
  - Risk of reoffending while on bail.
  - Interference with witnesses or evidence.
- The prosecution may submit evidence, such as prior criminal history, past bail breaches, or evidence which forms part of the case against the accused person.
Defence Submissions
- The defence presents arguments in favour of granting bail, demonstrating why the accused should be released and how risks can be mitigated.
- Common evidence presented includes:
  - Character references from employers, family members, or community leaders.
  - Surety proposals, where a person pledges financial security to ensure the accused complies with bail conditions.
  - Documents proving stability, such as proof of employment, residence, or caregiving responsibilities.
  - Medical or personal circumstances justifying the need for bail.
  - Proposed bail conditions to address concerns (e.g., electronic monitoring, reporting requirements).
Judicial Questions and Considerations
- The magistrate or judge can actively engage in the hearing, asking questions to clarify concerns and assess the viability of granting bail.
- Courts rely on factors under Sections 17 and 18 of the Bail Act 2013, including:
  - The seriousness of the offence.
  - The accused’s history of complying with previous bail orders.
  - Potential hardship if bail is denied.
  - Any systemic disadvantages the accused may face, such as being an Indigenous person or having mental health issues.
Presentation of Additional Evidence
- Both the prosecution and defence may submit supporting evidence at any point during the hearing. The evidence can be:
  - Written statements (e.g., character references, employer letters).
  - Financial surety documents showing a guarantor’s willingness to secure bail.
  - Medical reports supporting claims of hardship.
Bail Decision
- After hearing both sides, the court will make one of the following determinations:
  - Bail Granted: The accused is released under specific conditions.
  - Bail Granted with Conditions: Restrictions may include curfews, travel bans, electronic monitoring, or regular reporting to police.
  - Bail Refused: The accused remains in custody but may apply again or seek a review, depending on the circumstances.

Why Legal Representation Matters

Engaging an experienced criminal lawyer is essential in a bail hearing. A lawyer can:

Prepare persuasive legal submissions.
Present compelling evidence to counter prosecution concerns.
Suggest workable bail conditions to increase the likelihood of release.
Ensure procedural fairness and adherence to legal rights.

Understanding the complexities of a bail hearing helps accused individuals prepare effectively, ensuring their application is as strong as possible.

How Can You Strengthen a Bail Application?

Evidence Supporting a Granted Bail

Strong applications often include:

Character References: From employers, community leaders, or family members.
Proof of Stability: Evidence of employment, housing, or family responsibilities.
Bail Conditions: Proposals such as daily reporting to police, surrendering a passport, or curfews.

Mitigating Risk Factors

If there is a history of breaches or other risk indicators, addressing these directly with evidence of compliance or changes in circumstances is crucial.

Why Bail Might Be Refused (And What to Do About It)

Common Reasons for Refusal

Bail may be refused when the court determines that an accused person presents an unacceptable risk under Section 19 of the Bail Act 2013. This includes concerns that the accused may:

Fail to appear in court as required.
Pose a risk to community safety by engaging in further criminal activity.
Interfere with witnesses or evidence, undermining the legal process.

Additionally, if the accused is charged with a serious offence (as defined under Section 16A of the Bail Act 2013), they must show cause as to why their continued detention is not justified. If they fail to do so, bail will be refused regardless of whether they pose an unacceptable risk.

Next Steps if Bail Is Refused

If bail is refused, the accused has limited opportunities to apply again. In general, a person gets one bail application per court level (Local Court and Supreme Court), with some exceptions:

1. Bail Review – Change of Circumstances (Section 74 of the Bail Act 2013)

A bail review in the same court can only be requested if it satisfies the criteria outlined in this section of the Bail Act, and for adult persons accused, it is summarised as follows:

There is a change of circumstances, such as new evidence or material facts not available at the initial hearing.
The accused has was not legally represented in the previous application and now has legal representation
Material information relevant to the grant of bail that was not previously raised.

A change of circumstances must be substantial—minor changes or repeating the same arguments will not justify another application in the same court. What constitutes a change in relevant circumstances varies from each individual case (R v BNS [2016] NSWSC 350). However, circumstances such as pending and finalised plea negotiations (R v Hird [2017] NSWSC 1840) and significant delay in finalising trial (Woods v R [2017] NSWSC 1840) can constitute a ‘change of circumstances’.

2. Fresh Bail Application in the Supreme Court

If bail is refused in the Local Court, the accused can file a fresh bail application in the Supreme Court. This is not an appeal—it is a de novo (fresh) hearing, meaning the Supreme Court will consider the bail application as if for the first time, without regard to the Local Court’s previous decision.

However, the Supreme Court process is more complex, requiring:

Additional paperwork and strict compliance with procedural requirements.
Time-sensitive deadlines for filing and serving evidence.
Potentially stricter requirements for certain types of evidence, such as psychiatric reports or financial surety documents.

Considerations Before Reapplying for Bail

Given that an accused generally only gets ‘one shot per court’, it is crucial to:

Seek legal advice to ensure the application is well-prepared from the outset.
Provide strong evidence addressing the court’s concerns (e.g., showing employment, community ties, or mental health treatment if relevant).
Propose realistic bail conditions to mitigate identified risks, such as curfews, electronic monitoring, or travel restrictions.

What If Bail Is Still Refused?

If bail is refused at all court levels, the accused will remain in custody until trial or sentencing. However, further options may include:

Applying for bail in the Court of Criminal Appeal (in limited circumstances).
Seeking a bail review if new, compelling evidence emerges.

Understanding the legal principles behind bail refusals and available next steps is crucial for anyone seeking release from custody. A well-prepared application, backed by expert legal representation, significantly improves the likelihood of a successful bail outcome.

How Bail Conditions Work

When bail is granted, the court may impose specific conditions to mitigate risks associated with the accused’s release. These conditions are outlined in Section 20A of the Bail Act 2013 (NSW) and aim to ensure compliance with the legal process while maintaining public safety.

Common Bail Conditions

The court tailors bail conditions based on the individual case, but commonly imposed conditions include:

Regular Reporting to Police – The accused may be required to report to a designated police station at specified intervals (e.g., daily, weekly).
Curfews – Restrictions on movement during certain hours to reduce the risk of reoffending or absconding.
Travel Restrictions – Surrendering passports or being prohibited from leaving a designated area, such as the state or country.
Non-Association Orders – Prohibiting contact with co-accused individuals, witnesses, or certain groups to prevent witness tampering.
Residence Requirements – Requiring the accused to reside at a specific address and notify authorities of any changes.
Electronic Monitoring – In some cases, electronic ankle bracelets may be required to track movements.
Surety or Financial Security – A person (surety) may provide financial assurance that the accused will comply with bail conditions.
Alcohol and Drug Restrictions – Abstaining from alcohol or illicit substances, with potential random drug and alcohol testing.

Compliance Tips

Strict adherence to bail conditions is essential, as any breach may result in bail revocation. To avoid complications:

Keep a record of your reporting schedule and ensure punctuality.
Avoid areas or individuals restricted by your bail conditions.
Maintain communication with your legal representative if any issues arise.
Seek legal advice if circumstances change, requiring bail conditions to be varied.

Consequences of Breaching Bail Conditions

Failing to comply with bail conditions can result in serious legal repercussions, as outlined in Section 77 of the Bail Act 2013:

Immediate Arrest – Police have the authority to arrest and detain an accused person if they breach their bail conditions.
Bail Revocation – A court may revoke bail, potentially leading to detention until trial.
Additional Charges – Breaching bail may result in further criminal charges.
Increased Scrutiny on Future Bail Applications – If bail is revoked, the accused may face difficulties obtaining bail in future applications, as courts will assess prior breaches when considering new requests.

Understanding and following bail conditions is crucial to maintaining freedom while awaiting trial. If any condition is unmanageable, legal advice should be sought immediately to apply for a bail variation under Section 48(1)(c) of the Bail Act 2013.

Challenges in Serious Cases

Applying for Bail After Serious Charges

Serious offences, such as drug trafficking or violent crimes, face stricter scrutiny under NSW law. In these cases, courts may apply the "show cause" test, requiring the accused to demonstrate why detention is not justified.

Impact of Legal Representation

For serious cases, having a lawyer experienced in navigating complex bail matters is crucial. A skilled legal team can:

Address risk factors proactively, ensuring concerns raised by the prosecution are mitigated.
Present compelling evidence, including character references, financial sureties, and medical reports if necessary.
Use legal precedents from past successful bail applications to strengthen arguments.
Argue for tailored bail conditions that satisfy the court while ensuring the accused's compliance.

Although this guide aims to assist any person who is seeking to understand the process of bail, each case depends on its own merits. This article speaks only to the general procedure and general principles which are considered when an accused person is applying for bail. For a lawyer to properly advise on the prospects of a bail application, it is important to first discuss the specifics of the case with the lawyer..

Costs and Financial Considerations

How Much Does Bail Cost in Australia? Legal Representation Fees

Bail amounts vary widely based on the nature of the charges and the individual’s circumstances. Typical amounts range from a few thousand dollars to tens of thousands of dollars, depending on the stage of the proceedings, the size of the team, and the expertise of the team.

Investing in an experienced lawyer is crucial when applying for bail. Legal fees vary depending on the complexity of your case, the court level at which your application is being heard, and the expertise of the lawyer or legal team representing you.

Tailoring Legal Representation to Your Budget

The level of legal representation you choose can significantly impact your case. Depending on your budget, you may opt for:

A Single Solicitor: A cost-effective option where an experienced criminal lawyer prepares and presents your case in court.
A Full Legal Team, Including a Barrister or Senior Counsel: For high-stakes or complex cases, retaining a larger legal team, including senior counsel (King’s Counsel or experienced barristers), can provide comprehensive representation. While not always necessary, having multiple legal minds on your case can offer peace of mind and ensure every legal angle is covered.

Ultimately, the choice of legal representation should align with the seriousness of the charges, the complexity of the bail application, and your financial situation. Regardless of the team size, engaging a lawyer with expertise in bail applications remains crucial for securing the best possible outcome.

Guarantors and Deposits

In the bail process, guarantors and deposits play a significant role in ensuring the accused person complies with their bail conditions. A guarantor is someone who guarantees that the accused person will adhere to the bail agreement or specific conditions set by the court. This guarantee often involves a financial commitment, where the guarantor agrees to pay a certain amount if the accused person fails to comply. This is also colloquially known as an ‘Agreement to Forfeit without deposit’.

A deposit, on the other hand, is a sum of money or other collateral that the accused person must provide to secure their release from custody while awaiting trial. This is also known as a ‘pre-release requirement’, which means that if this condition is ordered and no deposit is made, the accused person is not able to leave until such time as the deposit is made. This deposit acts as a financial deterrent for the accused person to breach their bail conditions and an incentive for the accused person to attend all court proceedings as required.

Bail Guarantor

A bail guarantor is a crucial part of the bail process, providing a financial guarantee to the court that the accused person will comply with their bail conditions. The guarantor must demonstrate their ability to pay the amount set by the court, which can be done through cash, a bank cheque, or proof of assets such as real property. This financial commitment underscores the guarantor’s confidence in the accused person’s compliance and serves as an additional assurance to the court.

By understanding the roles of guarantors and the requirements for deposits, accused persons and their supporters can better navigate the bail process and increase their chances of securing bail.

Why Expert Legal Help Is Essential

The Role of a Lawyer

An experienced lawyer can:

Build a strong bail application.
Present evidence effectively.
Address the court’s concerns.

JBP Law’s Expertise

At JBP Law, we have a proven track record of securing bail for clients facing challenging circumstances. Our tailored approach ensures the best possible outcome for your case.

Conclusion

Securing bail can be a complex and daunting process, but the right knowledge and legal support make a world of difference. Whether you’re applying for the first time or challenging a refusal, acting quickly and seeking expert advice is crucial. Contact JBP Law for a confidential consultation and take the first step towards protecting your future.

Frequently Asked Questions

Can bail be revoked for minor breaches?

Yes, even minor breaches can lead to bail being revoked. Courts take compliance seriously and consider breaches as potential risks to granting bail in future.

How do courts assess community ties?

Courts consider employment, family responsibilities, housing stability, and other factors that indicate a low risk of absconding.

Can I apply for bail multiple times?

Yes, but subsequent applications require new evidence or changed circumstances to justify reconsideration. The general rule is one application in Local Court and one application in Supreme Court.

How long does a bail application take?

Most applications in the Magistrates Court are resolved within a day. Complex cases in higher courts may take longer. Although most applications are finalised in the day, the waiting period to be heard may be anywhere from 1 week to 2 months depending on the Court availabilities.

Do I need a lawyer for a bail application?

While not mandatory, legal representation greatly improves your chances by crafting a tailored and compelling argument.

What happens if I breach bail conditions?

Breaching bail can result in immediate arrest and reduce the likelihood of bail being granted in future applications.