How Bail Decisions Are Actually Made in NSW

The Framework: Bail Act 2013 (NSW)

Bail in NSW is governed by the Bail Act 2013, which replaced the former presumption-based system with a structured assessment framework. The Act requires bail authorities to apply a two-stage test:

1. Show Cause: For certain serious offences, the accused must show cause why detention is not justified (section 16A)
2. Unacceptable Risk: For all bail decisions, the bail authority assesses whether there is an unacceptable risk that cannot be mitigated by conditions (section 17)

Show Cause Offences

For offences listed in section 16B, the accused bears the onus of showing cause why their detention is not justified. Show cause offences include:

• Serious indictable offences punishable by imprisonment for life
• Offences involving sexual intercourse with a child under 16
• Domestic violence offences where the accused has a history of DV offences
• Offences committed while on bail for a serious offence
• Offences committed while on parole
• Serious firearms and weapons offences

What "Showing Cause" Requires

Showing cause requires demonstrating, on the balance of probabilities, that the accused's continued detention is not justified. Relevant considerations include:

• Weaknesses in the prosecution case
• Personal circumstances making flight or offending unlikely
• Strong community ties
• Available bail conditions that address risks
• Likely delay before trial and proportionality of detention

Unacceptable Risk Assessment

Even if show cause is met (or does not apply), the bail authority must assess whether bail should be refused because of unacceptable risk. Section 17 identifies four risk categories:

1. Failure to Appear

Risk that the accused will fail to attend court. Factors include:

• Prior failures to appear
• Strength of community ties
• Employment and family obligations
• Overseas connections and passport access
• Severity of likely sentence if convicted

2. Commission of Serious Offence

Risk of committing a serious offence while on bail. Relevant factors:

• Criminal history, particularly recent or similar offending
• Circumstances of the current alleged offence
• Drug or alcohol issues relevant to offending
• Mental health considerations
• Relationship between accused and victim

3. Endangering Safety of Victims, Individuals, or Community

Risk of endangering the safety of specific persons or the community. This overlaps with but is distinct from the offending risk—it addresses safety specifically.

4. Interference with Witnesses or Evidence

Risk that the accused will interfere with evidence, intimidate witnesses, or obstruct the course of justice. Considerations include:

• Relationship between accused and witnesses
• Nature of the evidence (documentary vs testimonial)
• Whether investigation is complete
• Prior conduct suggesting interference risk

Bail Conditions

Where risks exist but are not unacceptable, bail conditions may mitigate concerns. Common conditions include:

Reporting Conditions

• Reporting to a police station (daily, weekly, as directed)
• Specified times and locations

Residence Conditions

• Requirement to reside at a specified address
• Curfew requirements (e.g., between 9pm and 6am)

Non-Association and Non-Contact

• Prohibition on contacting victims or witnesses
• Prohibition on associating with co-accused
• Exclusion from specified locations

Conduct Conditions

• Not to consume alcohol or illicit drugs
• Submit to drug/alcohol testing
• Surrender passport
• Not to approach international departure points

Security Requirements

• Personal undertaking (agreement to forfeit money if conditions breached)
• Security deposit (actual payment of money)
• Surety (third party agreement)

How Bail Decisions Are Made in Practice

From CORE Defence Lawyers' extensive bail application practice across Parramatta and Sydney courts, bail decisions turn on:

Quality of Submissions

Well-prepared bail applications that directly address statutory criteria with supporting material are more likely to succeed than generalised submissions. Courts respond to specific proposals that address identified risks.

Supporting Material

Effective bail applications are supported by:

• Letters of support from family, employers, or community members
• Evidence of accommodation arrangements
• Treatment or rehabilitation plans
• Character references
• Employment confirmation

Condition Proposals

Proactive condition proposals demonstrate the accused's willingness to address risks and provide the court with practical enforcement mechanisms.

Prosecution Position

While not determinative, the prosecution position is influential. Where police or prosecutors do not oppose bail, or do not oppose specific conditions, courts are more likely to grant release.

Bail Refusal and Review

Consequences of Refusal

Where bail is refused, the accused is remanded in custody. They may apply for bail review to a higher court (Local Court decisions may be reviewed by Supreme Court).

Release Applications

A person refused bail may make a release application to the same court if there is a "material change in circumstances" or the previous application was not determined on its merits.

Detention Applications

Conversely, prosecution may apply to detain a person who was granted bail if circumstances have changed or new information emerges.