Bail decisions determine whether a person remains in custody or returns home while their matter proceeds through the courts. Due to the stakes involved, the bail application is a critical part of the early court action that forms part of a person’s defence against charges. Understanding how those decisions are made and what factors the court considers is essential for anyone navigating this process.
What Is Bail, and Who Needs to Show Cause?
Bail is the conditional release of an accused person from custody while their criminal matter remains before the courts. It is governed in NSW by the Bail Act 2013, which sets out the considerations for the court in assessing an application and the conditions that might be imposed if bail is granted.
Not every application proceeds on the same footing. For certain serious offences, the applicant must first satisfy the show cause requirement. This means the applicant bears the burden of demonstrating why their continued detention is not justified. Offences that require cause to be shown include murder, supply, manufacture, import, and possession of commercial quantities of drugs, serious indictable firearms offences, and serious crimes committed while the defendant is on bail for another matter.
If the applicant cannot show cause, bail will be refused. If they can show cause, the court will then consider the ‘unacceptable risk’ test to determine whether to release the person on bail.
The ‘Unacceptable Risk’ Test: What Courts Are Really Asking
The central question in any bail application is whether releasing the accused would pose an unacceptable risk. The court must consider four specific risks: that the person will fail to appear at court, commit a serious offence while on bail, endanger the safety of victims or the community, or interfere with witnesses or evidence.
In making an assessment of whether an unacceptable risk exists, the court must consider only matters that are set out in the legislation, which includes: assessing those risks, the court weighs a range of factors, including:
- The nature and seriousness of the offence and the strength of the prosecution’s case
- Whether the accused has a history of violence, and whether they have committed a serious offence while on bail before.
- The length of time the person is likely to stay in custody if bail is refused.
- The likelihood of a custodial sentence being imposed if the person were found guilty of the offence charged.
- The bail conditions that might be imposed to address any bail concerns.
If the court finds that an accused person is not a risk or that the imposition of conditions will remove any risk, the person may be granted bail.
Does Your Criminal History Matter?
An applicant’s criminal history is an important factor the court considers. Prior convictions for offences of violence, or a history of failing to appear when required, will weigh heavily against a grant of bail. A pattern of offending while on bail is particularly damaging, as it speaks directly to the risk that history will repeat.
Building a Strong Application: What Evidence the Court Needs to See
A well-prepared bail application does more than assert that the applicant should be released; it presents material that directly addresses the court’s concerns about risk. The quality and relevance of that material can be the difference between bail being granted or refused.
Supporting material commonly relied upon includes:
- Letters from employers confirming current or pending employment
- Evidence of stable accommodation, such as a lease agreement or a letter from a family member offering housing
- References from people who can speak to the applicant’s reliability to attend court and their ties to the community
- Medical or psychological reports that are relevant to the applicant’s circumstances
- Proposed surety arrangements, where a suitable person is willing to lodge an amount with the court
Where bail has already been refused in the Local Court, an application may be made in the Supreme Court. Supreme Court bail applications involve a more detailed process.
Bail Conditions: What They Look Like and When They Can Be Changed
Where bail is granted, conditions are almost always attached. The court tailors conditions to the specific risks identified. Common conditions include regular reporting to a local police station, a residential requirement, a curfew, restrictions on contact with complainants or witnesses, and surrender of a passport.
Applications to change conditions are often made after the first grant of bail, where circumstances change over time. It is important to approach any variation application with the same level of preparation as the original bail application, as the court will again consider whether the proposed change creates or increases any unacceptable risk.
If Bail Is Refused, What Happens Next?
Bail may be refused because the applicant has not shown cause, because the court finds an unacceptable risk that cannot be managed by conditions, or because the material put before the court was insufficient to displace that concern. Understanding the specific basis for refusal is important, as it informs what needs to be addressed in any further application.
A further bail application can be made where there has been a change in circumstances since the original decision. This threshold exists to prevent repeated applications using the same material. A change in circumstances might include new evidence, a shift in the prosecution’s case, a change in the applicant’s personal situation, or a significant change in the anticipated timeline of the proceedings.
Get Legal Advice Before Your Bail Hearing
The preparation behind a bail application matters as much as the application itself. A thorough, well-structured submission that anticipates the court’s concerns and addresses them directly gives the strongest prospect of a grant of bail. Kingston Fox has extensive experience in bail applications across all NSW courts. Speak with our lawyers today to discuss your matter and understand your options.
