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. 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 2013 (NSW). In presenting an application for bail, it is first necessary to determine whether the alleged offence is a show cause offence. According to section 16A, a bail authority making a bail decision for a show cause offence must refuse bail unless the accused is able to show cause as to why his or her detention is not justified. Outlined in section 16B of the Act, this requirement generally applies to serious indictable offences that are violent or sexual in nature, or involve the use of a prohibited weapon. However, it should be noted that further show cause offences are outlined within the legislation.
In addition to show cause offences, the Bail Act 2013 (NSW) also operates differently in relation to offences for which there is a right to release as outlined under section 21(2).
According to the Act, the bail authority must make one of three bail decisions in regard to an offence for which there is a right to release. This is either a decision to release the person without bail, to dispense with bail, or to grant bail to the person with or without the imposition of bail conditions.
In circumstances where the alleged offence is not deemed a show cause offence, or where the accused successfully shows that detention is not justified, section 17 of the Act requires the court to consider whether an applicant poses any of four bail concerns, which result in the applicant being declared an unacceptable risk.
Assessing Bail Concerns
As outlined above, section 17 of the Bail Act 2013 (NSW) requires the bail authority to assess any relevant bail concerns. For the purposes of the Act, a bail concern is a concern that, if released from custody, the accused will:
- Fail to appear at any proceedings for the offence, or
- Commit a serious offence, or
- Endanger the safety of victims, individuals or the community, or
- Interfere with witnesses or evidence.
It is important to note that the principle criterion applicable to bail applications is not the defendant’s 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.
In assessing whether an applicant presents any bail concerns, section 18 of the Act outlines several matters that may be considered by the bail authority.
A primary consideration of the bail authority is made in reference to the defendant’s history and personal circumstances. In assessing whether the defendant presents any bail concerns, it is common for the bail authority to make reference to:
- The defendant’s personal background, including their criminal history, circumstances and community ties;
- 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;
- Whether the defendant has a history of violence or any criminal associations;
- Any previous failure by the defendant to appear in court pursuant to a bail undertaking;
- Whether the defendant has a history of compliance or non-compliance with court orders such as bail conditions, apprehended violence orders (‘AVO’), parole orders or good behavior bonds.
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;
- Any bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A of the Act.
The interests of other potentially affected parties may also be taken into consideration by the bail authority 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.
Mitigating Bail Concerns
If, upon assessment of the above criteria, the bail authority finds that there are identifiable bail concerns, the bail authority must then determine whether this concern can be mitigated through the imposition of bail conditions. These conditions may be imposed in relation to the defendant’s conduct or place of residence, and may also require a monetary security deposit to be made out to the bail authority.
According to section 20A(2) of the Act, a bail authority may only impose bail conditions if it is satisfied that:
- The bail condition is reasonable necessary to address a bail concern, and
- The bail condition is reasonable and proportionate to the offence, and
- The bail condition is appropriate to the bail concern it seeks to mitigate, and
- The bail condition is no more onerous than necessary to address the relevant bail concern, and
- It is reasonable practicable for the accused person to comply with the bail condition, and
- There are reasonable grounds to believe that the condition is likely to be complied with.
Granting of Bail
According to section 20 of the Bail Act 2013 (NSW), if the bail authority is satisfied upon assessment of the bail concerns that there is no unacceptable risk, or that any risk can be mitigated by the imposition of bail conditions, then the authority must make a decision to either to dispense with bail, or to grant bail to the person with or without the imposition of bail conditions.
Once bail is granted, section 33 of the Act requires the bail authority to, as soon as practicable, ensure the person is given a bail acknowledgment for the decision. A bail acknowledgment is a written notice that requires the defendant to appear before an elected court, on such day and at such time as is specified in a notice given or sent to the person, and also requires that the defendant notify the court before which they are required to appear of any change of residential 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. It is therefore also necessary that the bail acknowledgement set out the bail conditions (if any), explains the consequences that may follow if the person fails to comply with his or her bail conditions, and must also warn the person that committing an offence while on bail could result in a more severe penalty being imposed.
Refusal of Bail
Under section 19 of the Act, a bail authority must refuse bail where it is satisfied, on the basis of an assessment of bail concerns, that there is an unacceptable risk. According to section 34, a court or authorized justice that refuses or revokes bail must, as soon as practicable, ensure the defendant is given a written notice of refusal setting out the terms of the decision, and any information regarding the review or variation of the decision the regulations require to be provided when bail is refused.
In circumstances where the applicant has been refused bail and wishes to dispute this ruling, a second application to the Local, District or Supreme Court may be made if:
- The applicant was not represented by a lawyer at the first bail application;
- The applicant has new information for the court as to why they should receive bail;
- There has been a change of circumstances; or
- The applicant is under the age of 18, and the first bail application was made on their first appearance for the offence.
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.