What is Bail?

Section 7 of the Bail Act 2013 (NSW) defines bail as “authority to be at liberty for an offence.”

Who can Grant Bail?

As per the Bail Act 2013 (NSW) bail can only be granted by a ‘bail authority’. Bail Authority is defined as a police officer, an authorised justice, or a Court.

Bail granted by the Police is referred to as Police Bail. While bail granted by a Court or a Justice is called Bail.

When is a Bail Sought?

Bail is sought after the accused is charged with a criminal offence and arrested.

What Factors are considered before Granting a Bail?

There are several factors considered by the Court in a bail application. They are as follows:

Is the offence a ‘Right to release’ offence?

A fine only offence, a summary offence or an offence under the Young Offenders Act 1997 is a ‘Right to release offence’

Is the offence a ‘show cause’ offence?

A ‘show cause’ offence is an offence punishable by imprisonment for life, a serious indictable offence, a serious personal violence offence or an offence involving wounding or the inflication of grievous bodily harm. An indictable offence under Part 3 or 3A of the Crimes Act 1900 (NSW) or an offence under the Firearms Act 1996 that involves the use of a firearm. Section 16B of the Bail Act 2013 (NSW) enumerates the full list of ‘show cause offences’.

Are there any ‘unacceptable risk’ with the grant of the bail?

Section 19 Bail Act 2013(NSW) states that if there is a risk of any of the following, bail must be refused:  

  1. Failure to appear at Court
  2. Commit a serious offence
  3. Endanger the safety of victims, individuals or the community
  4. Interfere with witnesses or evidence

The unacceptable risk test will be determined by reviewing the alleged offence and the defendant’s criminal history and antecedents.

Are there any bail concerns?

Much like unacceptable risk, bail concerns refer to

  1. failure to appear at Court,
  2. Commit a serious offence
  3. Endanger the safety of victims, individuals or the community
  4. Interfere with witnesses or evidence.

Bail concerns fall short of unacceptable risks and can be ameliorated by imposition of bail conditions.

If bail concerns exist, can bail conditions be imposed?

Sections 25 30 of the Bail Act 2013 (NSW) deal with the type of bail conditions that can be imposed. They can include conduct requirements, security, character acknowledgements, accommodation,  requirements and enforcement conditions.


Bail Decisions by the Court

The court has power under Section 8 of the Bail Act 2013 (NSW) to make the following decisions when an accused applies for bail:

  • releasing an offender without bail
  • dispensing with bail
  • grant bail (with or without conditions)
  • refuse bail

Changing Bail Conditions

You can apply to the court to have your bail conditions changed or deleted because of changes in personal, health or financial circumstances i.e. got a new job with different working hours or change
of residence etc.

What are the Consequences of not Complying with Bail Conditions?

In the event of a breach of the bail conditions the following actions can be taken by the police:

  • a warning may be issued,
  • if an offence is committed while on bail, a court attendance to appear in the court may be issued,
  • a warrant for arrest may be sought,
  • an arrest may be made.

When the Police bring the accused back to Court, the Court may vary the existing bail condition or revoke bail.

What to do when bail is refused?

Multiple bail applications cannot be made unless the hurdle in Section 74 of the Bail Act 2013 (NSW) is satisfied which states:

  • the person was not legally represented when the previous application was dealt with and the
    person now has legal representation, or
  • material information relevant to the grant of bail is to be presented in the application that
    was not presented to the court in the previous application, or
  • circumstances relevant to the grant of bail have changed since the previous application was made, or
  • the defendant is a child and the previous application was made on a first appearance for the offence.

If an accused is bail refused at the Local Court, they can make a subsequent bail application on the new information/ change in circumstances or make a Supreme Court bail application.

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