Bail Applications
Clear advice on how bail decisions are made and how a strong application is prepared.
Bail in NSW is governed by the Bail Act 2013 and determines whether a person charged with an offence is released into the community, and on what conditions, while their matter makes its way through the court, rather than being held in custody. The Act applies a tiered approach: most offences are assessed under the "unacceptable risk" test, while a defined list of more serious offences — including firearms trafficking, robbery in circumstances of aggravation, serious drug supply, and offences committed while already on bail or parole — are "show cause" offences, where the accused must first satisfy the court that their continued detention is not justified before the unacceptable risk test is even considered.
Under the unacceptable risk test, the court weighs whether releasing the accused would create an unacceptable risk that they will fail to appear, commit a further serious offence, endanger the safety of victims or the community, or interfere with witnesses or evidence. Critically, the court must also consider whether any identified risk could be sufficiently addressed by imposing conditions — such as reporting to police, residing at a fixed address, surrendering a passport, a curfew, or a surety — rather than refusing bail outright.
A bail decision is not the end of the story. It can be reviewed by a more senior court, varied as circumstances change, and revisited where new information becomes available, meaning an initial refusal is not necessarily final. Because time spent in custody before a matter is resolved can affect employment, family responsibilities, and the ability to properly prepare a defence, a well-prepared bail application — directly addressing the specific risk the court is concerned about — is often one of the most time-critical steps in a criminal case.
Penalties
What you could be facing
| Penalty | Maximum | Notes |
|---|---|---|
| Unacceptable risk offences (the general test) | Bail Act 2013 default test applies | Applies to the majority of offences. The court considers the risk of flight, further offending, harm to the community, or interference with evidence, and what conditions could adequately address any risk identified. |
| Show cause offences | Presumption against release unless cause is shown | Covers a defined list of serious offences, including firearms trafficking, aggravated robbery, serious drug supply, and offences allegedly committed while on bail or parole for another matter. The accused carries the onus of showing cause before the unacceptable risk test is even applied. |
| Fail to appear in accordance with bail (s79 Bail Act 2013) | 3 years imprisonment and/or a fine of 30 penalty units on indictment; 12 months and/or 20 penalty units summarily | A standalone criminal offence for failing, without reasonable excuse, to appear at court as required by a bail acknowledgment, separate from any revocation of bail itself. |
| Breach of bail conditions | Bail may be varied or revoked; arrest without warrant is available | Not a specific criminal offence in itself, but an alleged breach of conditions can result in immediate arrest, a fresh bail determination, tightened conditions, or bail being revoked entirely. |
Possible Defences
Ways this charge can be challenged
Addressing the specific risk identified
Rather than arguing in the abstract, the strongest bail applications directly answer the exact risk the prosecution or court has raised — for example, proposing a surety, a curfew, or reporting conditions that specifically respond to a concern about flight, reoffending, or contact with a complainant.
Demonstrating cause for show cause offences
Where a show cause offence is charged, matters such as the apparent strength or weaknesses in the prosecution case, the accused’s lack of a prior record, ill health or caring responsibilities, and the likely delay before the matter can be finalised can all support an argument that continued detention is not justified.
Change in circumstances
Where bail was previously refused, a fresh application can be made if circumstances have genuinely changed since the last determination — such as newly proposed conditions, updated medical or character evidence, or a change in the strength of the evidence against the accused.
Proposing structured conditions instead of detention
Presenting a comprehensive package of conditions — such as electronic monitoring, non-association or place restrictions, and a suitable surety — can persuade a court that any risk identified can be adequately managed in the community rather than justifying continued detention.
What Happens Next
The Local Court process
- 01
On charging a person, police decide whether to grant bail themselves, refuse it (requiring a court decision), or release the person unconditionally, depending on the offence and the circumstances.
- 02
Where bail is refused or not addressed by police, the accused is brought before the Local Court, usually the next sitting day, for an initial bail determination.
- 03
At the hearing, the court applies the show cause test, if applicable, and the unacceptable risk test, hearing submissions from the prosecution and the defence about the relevant risk factors and any proposed conditions.
- 04
If bail is refused in the Local Court, a further application can be made to the Supreme Court, which has broader jurisdiction to review the decision, including where circumstances have genuinely changed or new material has become available.
- 05
Once granted, bail conditions remain in force until varied, revoked, or the matter is finalised. An alleged breach of conditions can result in arrest and a fresh determination, including possible revocation.
- 06
Bail is reassessed at key stages as a matter progresses, including at committal and before any trial, and can be varied at any time on application by either the prosecution or the defence.
Frequently Asked Questions
Common questions
It is one of a defined list of more serious offences under the Bail Act 2013 — including firearms trafficking, aggravated robbery, serious drug supply, and offences committed while already on bail or parole — where the accused must first satisfy the court that their continued detention is not justified, before the usual unacceptable risk test is even considered.
It refers to whether releasing the accused would create an unacceptable risk that they will fail to appear at court, commit a serious offence, endanger the safety of victims or the community, or interfere with witnesses or evidence. The court must also consider whether conditions could sufficiently address any risk identified, rather than refusing bail outright.
Yes, provided your circumstances have genuinely changed since the last application — such as new proposed conditions, updated evidence, or a change in the strength of the case against you — a fresh application can be made in the Local Court, or you can apply directly to the Supreme Court for a review of the decision.
A breach can result in immediate arrest without a warrant and a fresh bail determination, at which point the court may impose stricter conditions or revoke bail entirely, particularly where the breach suggests the original risk was not being adequately managed.
Yes, any time spent in custody prior to sentencing in relation to the charge is generally taken into account and backdated against any subsequent term of imprisonment imposed, so that a person is not penalised twice for the same period.
Yes, these are common conditions imposed to address specific risks, such as the risk of flight or further offending, and are often proposed by the defence as part of a structured package intended to satisfy the court that release is appropriate.
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