Bail Applications

Bail is authority to remain at liberty while criminal proceedings are continuing. It is governed by the Bail Act 2013 (NSW). Section 7 explains the right to be at liberty under bail, while sections 16A–20 contain important rules about show cause, bail concerns and unacceptable risk.

Bail is not a finding that a person is guilty or innocent. The court decides whether release is permitted while the allegation is dealt with, and whether conditions are necessary. A person may be released without conditions, granted conditional bail, have bail dispensed with or be refused bail, depending on the applicable law and circumstances.

A bail application is not a trial. The prosecution does not have to prove the criminal charge beyond reasonable doubt at this stage. Instead, the bail authority assesses the applicable statutory tests using the information properly before it, including the apparent strength of the prosecution case.

Under section 32, bail proceedings are not bound by the ordinary rules of evidence, but the information considered must be credible or trustworthy in the circumstances. Police allegations can therefore be relevant even though witnesses have not yet been cross-examined at a trial.

The allocation of responsibilities depends on the test involved. For a show cause offence, the accused person must show why detention is not justified. Other provisions impose particular requirements in particular situations. Your lawyer should identify which rules apply before deciding what evidence is needed.

Section 16A requires bail to be refused for a show cause offence unless the accused person shows cause why detention is not justified. Section 16B identifies the offences covered. The list includes certain serious violence, firearms, drug and domestic violence offences, and specified offending while on bail or parole.

There is no single document or personal circumstance that automatically establishes show cause. The court considers the circumstances together. Relevant material may concern the prosecution case, expected delay, health, accommodation, responsibilities and other factors, depending on the application.

Showing cause does not finish the application. The unacceptable risk assessment must still be addressed. Section 16A's show cause requirement does not apply where the person was under 18 at the time of the alleged offence, but that does not mean a young person must receive bail.

Sections 17–19 require assessment of bail concerns and whether any concern amounts to an unacceptable risk. The concerns are that a released person will:

Section 18 identifies the matters that may be considered, including the person's history and community ties, the nature of the allegation, the strength of the prosecution case and previous compliance with orders. The court also considers whether proposed conditions could address the concerns.

Bail must be refused if there is an unacceptable risk. A useful application therefore addresses the actual concerns with evidence rather than merely promising to behave. A proposal that cannot realistically be followed may not provide the protection the court needs.

Conditions may concern residence, reporting to police, contact with particular people, travel or other conduct. Depending on the case, security or an acceptable person may be proposed. Money is not required for every bail application, and offering it does not purchase release.

Section 20A limits the imposition of conditions. Among other requirements, conditions must be necessary to address a bail concern, reasonable and proportionate, no more onerous than necessary, and reasonably practicable to comply with.

Check a proposed address and reporting arrangement before the hearing. If a person is offering accommodation or security, their agreement and ability to meet the proposed requirement should be established. Do not promise a treatment place or supervision arrangement that has not actually been arranged.

Police may make an initial bail decision after charge. If bail is refused and the person remains in custody, a court application may follow. The papers, custody location and listing arrangements need to be checked promptly.

A lawyer reviews the allegations, criminal history, police objections and any existing orders. The application then presents the legal test, supporting information and a proposed release plan. The prosecution may oppose release or particular conditions. The court decides the application and explains the orders made.

If bail is granted, release may depend on completing the acknowledgment and meeting any pre-release requirements. Obtain the actual order and check every condition. If bail is refused, ask for advice about the reasons, any further application and the appropriate court.

Section 74 restricts repeated release applications to the same court unless a statutory ground is established. A further application should not be treated as an opportunity simply to repeat an unsuccessful proposal. New information, changed circumstances or other statutory grounds need careful consideration.

An application can also be made to vary bail conditions. Continue complying with the existing conditions until a lawful change is made. A police officer, accommodation provider or protected person's informal agreement does not necessarily vary a court order.

Special rules apply in some cases, including certain young-person matters under section 22C and post-conviction circumstances under section 22B. The available application and legal threshold should be checked against the current Act rather than assumed from a previous case.

Bail itself is not an offence and has no sentencing maximum. Failing to comply with a condition can nevertheless lead to police action and reconsideration of bail under sections 77–78. Breaching a condition is not automatically a separate criminal offence; the conduct may independently break another law.

Section 79 places the onus of proving reasonable excuse on the person granted bail. The dollar figure uses the $110 penalty unit in section 17 of the Crimes (Sentencing Procedure) Act 1999. The table does not describe penalties for any new offence committed while on bail.

Employment and community ties may be relevant, but they do not guarantee release. The court must apply the statutory tests to the whole application.

No. Bail is a decision about release while proceedings continue. It does not determine whether the prosecution can prove the charge at a hearing or trial.

Not if that would breach your conditions or an AVO. Check the wording of each order and seek a lawful variation where needed.

Provide the charge papers, existing orders, proposed address, contact details for accommodation providers and any genuine supporting documents. Do not contact prosecution witnesses or try to alter their evidence.

A criminal lawyer can identify the applicable bail tests, obtain the available papers, assess prosecution objections and prepare a practical release proposal. Advice can also address proposed conditions, repeated applications and the relationship between bail and an existing AVO.

Contact Austere Legal promptly if someone has been refused bail or cannot comply with an existing condition. Explain the custody location and next court date so that the appropriate procedural steps can be considered.

This information is general in nature and does not constitute legal advice. The appropriate approach to a bail application depends on the circumstances of each individual case.