Criteria Given Consideration in Bail Applications

Under Australian law, bail is the legal mechanism where a person who is arrested for a criminal offence can be released pending their trial, rather than being held in custody throughout its entire duration. Once the accused has been arrested and charged with a crime, the police will consider whether it is appropriate to release them on bail, and if so what bail conditions should be imposed. Bail can be obtained from the police after initial arrest, as well as from a Magistrate in the Local Court, a judge in the District Court, or a Justice in the Supreme Court. Research from the NSW Bureau of Crime Statistics and Research indicates that defendants are most likely to be granted bail in the Local Court. In 2007, 7.6% of defendants appearing in NSW Local Courts for any offence were refused bail, and 47.6% were refused bail in the Higher Courts, though both these figures have trended upwards in recent years. The purpose of this article is to help inform people unfamiliar with the legal system about the criteria that are taken into account by NSW courts when they are considering bail applications.

The New South Wales bail system

The regulation of the New South Wales bail system is outlined in the Bail Act 1978 (NSW), where section 32 provides a mandatory list of the criteria that must be considered in every bail application. It is important to note that the principle criterion applicable to bail applications is the probability or improbability of the defendant responding to bail, and not their supposed guilt or innocence. While the seriousness of the alleged offences may be taken into account during bail applications, the courts cannot rely on it as the sole determinant of whether bail will be granted.

It should be noted that there is a legal presumption under section 9 of the Act for bail being granted for all offences, except for those listed under section 9(1). A defendant will usually be entitled to bail if they have been arrested for a minor offence, such as one only punishable by a fine or listed in the Summary Offences Act 1988(NSW). Offences that are excluded under section 9(1) include serious indictable drug, violence or firearms offences, or where a person is already subject to a long term supervision order or on lifetime parole. Section 9C also requires the court not to grant bail to a defendant charged with the crime of murder, unless it is justified by exceptional circumstances.

Criteria considered in bail applications

There is a range of criteria listed in section 32(1) of the Bail Act 1978 (NSW), which the courts apply when considering a defendant’s eligibility for bail. The court will consider the probability of the defendant appearing in court, taking into account:

  • The defendant’s background and community ties, including the history and details of their residence, employment and family situations, and any prior criminal record.
  • Any previous failure by the defendant to appear in court pursuant to a bail undertaking.
  • The circumstances of the alleged offence, including its nature and seriousness, the strength of the evidence against the defendant, and the severity of the possible penalty.
  • Any other specific evidence indicating whether or not it is probable that the defendant will appear in court.

The courts will also give consideration to the interests of the defendant, including:

  • The period that the defendant would be obliged to spend in custody if bail were refused, and the conditions of custody.
  • The defendant’s need to be free to prepare for their appearance in court and to obtain legal advice.
  • The defendant’s need to be free for any other lawful purpose.
  • Whether in the opinion of the court, the defendant is incapacitated by intoxication, injury or drug-use, or is otherwise in danger of physical injury, or requires physical protection.
  • Whether the defendant is under the age of 18 years, has an intellectual disability or mental illness, or is an Aborigine or Torres Strait Islander.
  • The defendant’s criminal history, including the nature and seriousness of any previous indictable offence convictions, the number of any previous such offences and the length of time between these offences.

The court will also take into account the interests of other potentially affected parties when determining whether to grant bail. The court may consider the protection of the victim of the alleged offence, the protection of the victim’s close relatives, or any other person believed to require protection in the circumstances.

The courts will also consider the protection and welfare of the wider community, including:

  • The nature and seriousness of the offence, particularly whether the offence is of a sexual or violent nature or involves an offensive weapon.
  • Whether the defendant has previously failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition.
  • The likelihood the defendant would interfere with evidence, witnesses or jurors.
  • The likelihood the defendant would commit any serious offence while on bail.
  • If it is a serious offence whether, at the time the defendant allegedly committed the offence, the person had already been granted bail or parole for any other serious offences.
  • If the offence for which bail is being considered involves the possession or use of an offensive weapon, the defendant’s prior criminal record of such offences.

Granting of Bail

Once bail is granted, section 34 requires the defendant not to be released until they undertake in writing to appear before the court whenever required to, and to notify the court of any change of address. Bail may be unconditional, or conditions may be attached to it, such as the defendant agreeing to forfeit money if they fail to meet their bail undertakings, reporting to police on a regular basis, or surrendering their passport.

Refusal of Bail

Under section 22A, a court must refuse to entertain an application for bail if that application has already been made and dealt with by the court, unless there are valid grounds for a further application. As such, it is important that the application be prepared properly, as the only way another application can be made afterwards is if it can be demonstrated that one of these grounds would apply. The grounds are that:

  • The defendant was not legally represented when the previous application was dealt with, and now they do have legal representation, or
  • Information relevant to the grant of bail that was not presented to the court in the previous application, will be presented in the current application, or
  • Circumstances relevant to the grant of bail have changed since the previous application was made.

A court may also refuse to entertain an application for bail if it believes that the application is frivolous or vexatious in nature.

If you have any further questions about how the criteria considered during a bail application would apply to you, or need any further information, please contact us.

Getting Help


This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.

This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.

Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.

Requirements under Section 10

Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:

  • An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
  • An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
  • An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.

Section 10 and traffic offences

A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.

However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.

In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.

In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”

The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.

While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.

If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276


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