Bail in NSW
The Bail Act 2013 defines bail as the authority to remain at liberty after being charged with an offence. A bail authority makes decisions about bail. A police officer who has the power to make bail decisions, an authorised justice, and a court are all bail authorities.
The Bail Act 2013 took effect on 20 May 2014. The new Bail Act allows courts to refuse bail under broader circumstances than the old law permitted.
The new law does not necessarily make bail harder to obtain in routine cases than it was under the old law. When criminal charges are serious, however, the accused faces a greater risk of being held without bail while the case is pending. The sections below explain how the Bail Act works.
The new law makes it all the more important for the accused to obtain legal advice as soon as possible. While bail decisions can be reconsidered, fighting for bail at the earliest opportunity often provides the best chance of securing release until the charges are resolved.
Bail applications can be made by persons:
- appearing before a court in answer to a summons;
- held in custody on a charged offence;
- who have been convicted but not yet sentenced; and
- who have been convicted and sentenced but intend to appeal.
- Bail becomes progressively more difficult to obtain as you move down that list.
After an accused is arrested, the initial decision to grant or deny bail is usually made by the police. If the police arrest the accused on a warrant, however, they cannot grant bail if the warrant excludes the granting of bail by the police. If the police deny bail, the accused is entitled to apply for bail in court. After an accused appears in court, the police lose their power to set bail.
An application for bail must usually be made in writing. The first bail application is usually made on a simple form that is available from the police or the court. If bail is to be considered by the court, it is critical for the accused to prepare a strong argument for release. In most cases, a bail application to a court is more likely to be granted if the accused is represented by a lawyer.
If the court denies a bail application, the accused can apply again later, but the opportunity to do so may be limited. A bail application after bail has been denied is usually more detailed than the first bail application. The application must explain why new circumstances justify a release on bail. Individuals who need to file a second bail application are strongly advised to have the application prepared by a lawyer.
A bail authority can make one of four decisions when deciding whether to grant bail to an accused:
- Release the accused without bail.
- Dispense with bail.
- Release the accused with bail.
- Refuse bail.
These options may be exercised while the case is pending. The bail authority loses its power to make a bail decision after the case ends.
Release without bail
A police officer who has the power to make bail decisions can release an accused without bail.
Dispense with Bail
A court or authorised justice can dispense with bail instead of granting or refusing bail. When that happens, the accused is entitled to liberty as if bail had been granted.
Grant or Refuse Bail
All bail authorities have the power to grant or refuse bail.
Subject to the exceptions discussed below, before a bail authority makes a bail decision, the Bail Act 2013 (NSW) requires it to assess four bail concerns. Those concerns are the risk that, if released on bail, the accused will:
- Fail to appear for further court proceedings.
- Commit a serious offence.
- Endanger the safety of victims, individuals, or the community.
- Interfere with witnesses or evidence.
Factors Affecting Assessment
The bail authority can consider a variety of factors when it performs that assessment, including:
- The accused’s criminal history and history of violence, if any
- The accused’s ties to the community.
- The accused’s personal and financial circumstances.
- The seriousness of the alleged offence.
- The likelihood of a custodial sentence if the accused is convicted.
- The strength of the prosecution’s case.
- The accused’s compliance or failure to comply with bail conditions in other cases.
- The accused’s criminal associations if any.
- The length of time the accused is likely to spend in custody if bail is refused.
- The need for the accused to be at liberty in order to assist in the preparation of his or her defence.
- Other lawful reasons for which the accused might need to be at liberty.
- Special vulnerabilities or needs of the accused due to age, mental disability, or Aboriginal status.
- Bail conditions that might be imposed to alleviate bail concerns.
Unacceptable Risk Test
If the bail authority determines that the accused poses an unacceptable risk about any of the four bail concerns, bail must be refused.
Unless the risk about one of the bail concerns is unacceptable, bail must be granted or dispensed with, or the accused must be released without bail. When bail is granted, the bail authority may impose conditions.
The bail authority is not required to assess bail concerns if bail is refused for a “show cause” offence. Those offences are discussed below.
The bail authority must release the accused (with or without bail conditions) if the accused is arrested for or charged with:
- A fine-only offence.
- Most offences under the Summary Offences Act 1988 (NSW).
- Certain offences dealt with under the Young Offenders Act 1997 (NSW).
An accused who is released on bail conditions and then violates those conditions is no longer entitled to release, regardless of the offence.
Show Cause Offences
When an accused is arrested for or charged with certain offences, the bail authority does not begin by making an assessment of bail concerns. Instead, the bail authority must presume that bail should be denied unless the accused can show cause for granting bail.
Show cause offences include:
- Any crime that is punishable by a life sentence.
- A serious indictable offence involving sexual intercourse with someone under the age of 16.
- The infliction of actual bodily harm with the intent to have sexual intercourse with someone under the age of 16.
- Certain violent offences punishable by a term of imprisonment of 14 years or more.
- Certain serious indictable offences that involve the use of a firearm or military-style weapon.
- An indictable offence that involves the possession of a military-style weapon.
- An indictable offence that involves the use of a pistol or prohibited firearm in a public place.
- A serious indictable offence that involves the supply, manufacture, or acquisition of a pistol or prohibited firearm.
- Drug offences involving commercial quantities of the drug.
- A serious indictable offence committed while the accused is on bail or parole.
- An offence involving the failure to comply with a supervision order.
- Attempting, assisting, or conspiring in the commission of a show cause offence.
- Show cause offences apply only if the accused is age 18 or older.
Factors Affecting Show Cause Determination
The Bail Act 2013 does not specify how an accused can show cause that bail should be granted. Generally, the accused needs to convince the court that he or she has strong reasons to remain in the community and is therefore likely to attend court appearances as required. The accused also needs to persuade the court that he or she is unlikely to commit a serious crime if released.
Good reasons to believe an accused will remain safely in the community include:
- The accused has a job in the community that provides the accused’s only source of income.
- Ownership of a home or other significant property in the community.
- A wife, children, or other close family members are living in the community.
- The accused has no criminal history and the facts of the case do not suggest that the accused poses a threat to others.
- The case against the accused is so weak that the accused has no incentive not to fight the charges.
- The accused is in a treatment program or has taken other steps to resolve the issue that resulted in the alleged criminal conduct.
- Bail conditions can be set that would provide sufficient assurance that the accused will remain in the community and will not commit new crimes while the case is pending.
- Every bail application turns on its own facts. The more facts that can be cited in support of the bail application, the more likely it is that a court will find cause to believe that bail should be granted.
In many cases, a court will agree that the risk of an accused’s nonappearance in court can be minimized by setting conditions on the accused’s release. Bail conditions also serve to protect the community and the alleged victim. The accused must obey those conditions or risk a return to court and the revocation of bail.
A bail condition in every case requires the accused to attend court whenever an appearance is required. Other typical bail conditions include:
- No contact with the alleged victim or other specified people.
- Stay away from specified places (such as the victim’s residence or place of employment).
- No travel outside a designated area.
- Surrender passport.
- Obey a curfew, or remain in the accused’s residence during nonworking hours.
- Maintain current residence and employment.
- Report to the police on a designated schedule.
- No use of drugs or alcohol.
- Submit to random drug testing.
- Participate in a designated treatment or counseling program.
In some cases, an accused will be required to post security that can be forfeited if the accused violates a bail condition. Security can be cash or, if the court agrees, property. It can be posted by the accused or, if acceptable to the court, by another person on the accused’s behalf. In some cases, the court will accept a promise to pay in the event of a bail violation.
Bail After Sentencing
For certain offences, the court has the power to impose a sentence and then grant bail, provided it sets bail conditions that require the offender to participate in an extensive treatment or counseling program. If the program is completed successfully, the accused might be able to avoid serving the sentence that the court imposed.
The appropriateness of bail after sentencing is argued during the sentencing hearing. It is essential to have a treatment program in mind at that time. Being screened and accepted into the program before sentencing can help persuade the court that the accused is taking rehabilitation seriously.