Bail Laws in NSW: A Comprehensive Guide

We’ve all heard the saying, “Innocent until proven guilty”; it’s a cornerstone of our Australian legal system. But is it really that simple in practice?

The short answer is no.

As expert Criminal Lawyers, we spend a significant amount of time dealing with bail hearings – it’s a crucial aspect of the Australian criminal justice system that allows individuals accused of a crime to be released from custody while awaiting trial.

In New South Wales (NSW), bail rules and procedures have evolved over time to strike a balance between the presumption of innocence we just mentioned and protecting the community.

As such an important aspect of criminal law, we’ve put together this article to provide you with a summary of the bail rules in NSW, though note, this article is general in nature and is not to be taken as personalised criminal law advice.

The Bail Act 2013 NSW

When it comes to the Bail system in NSW, there is one act that serves as the foundation of all rules and procedures: The Bail Act 2013.

It seeks to uphold the fundamental principle of the presumption of innocence which recognises that persons should not be detained unless there are compelling reasons to do so; for example, if they remain a danger to the community. The Act establishes a range of factors that courts must consider when deciding whether to grant or refuse bail.

Bail Decision Criteria

According to the legislation, when considering a bail application, the court must assess the risks associated with releasing the accused. There are two divisions detailing the relevant considerations for bail criteria, and are dependent on the offence(s) charged, they are, “show cause” and or “unacceptable risk”.

Show Cause – Division 1A

Section 16A of the Bail Act 2013 NSW details:

(1) a bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

(2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test–all offences).

Section 16B of the Bail Act 2013 NSW details the relevant offences and matters that engage the show cause bail criteria.

Unacceptable Risk – Division 2

These risks include concerns about:

  • the accused failing to appear in court
  • committing further offences
  • interfering with witnesses
  • endangering the broader community’s safety

Other considerations, as outlined in section 18 include the nature and seriousness of the offence, the strength of the prosecution’s case, the accused’s background as well as their criminal history.

Under Section 16 of the Bail Act 2013, provides a flowcharter with respect to the above criteria.

Rights to review bail decision.

It’s important to note that bail decisions can be reviewed in some circumstances. Part 6 Division 3 of the Bail Act 2013 allows for a review of a bail decision by a higher court, either upon the application of the accused or the prosecutor. The reviewing court must consider the factors in Section 16A and Section 18 amongst other things and determine whether the original bail decision was appropriate.

This review mechanism is all part of the NSW legal system’s inherent checks and balances, designed to ensure that bail decisions can be revisited if there are significant changes in circumstances or if the original decision was made in error, promoting fairness and accountability in the bail process.

What happens if Bail is refused?

While Bail may be initially refused, Section 74 of the Bail Act 2013 allows for a further release application to be made if certain grounds are satisfied, such as:

  • new legal representation
  • material information not previously presented
  • changed circumstances, or
  • when the accused is a child.

While any bail application is treated as a new hearing under Section 75, allowing new evidence or information to be presented, it is crucial to note that changes to the Bail Act 2013 itself do not in and of themselves constitute a change of circumstances under Section 74(3)(c) or (4)(b). In other words, if the legislation changes, the decision the person as the accused received would remain the same. Of reference the Supreme Court of NSW has commented on Section 74 in the matter of R v Fallon (a pseudonym) [2017] NSWSC 1796.

Common FAQ: Why doesn’t everyone just review their decision until they receive the outcome they desire?

Well, it doesn’t quite work that way. Section 73 allows the court to refuse to hear a bail application on discretionary grounds if it is deemed frivolous, vexatious, or lacks substance – so most Legal Counsel only review a decision on genuine grounds.

Section 22B Detention Applications

One also needs to carefully consider Section 22B of the Bail Act 2013 NSW when negotiating plea bargains or upon a guilty verdict being returned.

Section 22B provides that unless special or exceptional circumstances exist, a bail authority must refuse bail, or not grant/dispense with bail, where a bail application is made during the period following conviction but before sentence for an offence/s for which the accused will be sentenced to full-time imprisonment. Also see Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938.

Are there any rules that apply once Bail has been granted?

Certainly. The Bail Act 2013 introduced the concept of bail acknowledgments, which replaced bail undertakings. Essentially, upon granting bail, a person receives a order called a bail acknowledgment that outlines specific conditions imposed by the presiding judge or magistrate, detailing the requirements that must be adhered to, such as appearing before the court at a designated time and place, as well as notifying the court of any change in residential address.

It’s essentially court order placed upon the defendant to abide by certain conditions / rules and to protect the community until the matter has been heard by the courts.

In the case of non-compliance, Police officers have discretion under Section 77 to take appropriate action if they believe, on reasonable grounds, that an individual has failed or is about to fail to comply with a bail condition as imposed by court order. While this does not constitute a criminal offence as prescribed in section 77, it does trigger a procedural mechanism for bail to be reconsidered and in most circumstances a breach of bail occurs due to criminal offending.

Why is it important to seek professional legal advice?

If you’re facing criminal charges and hoping to apply for bail, we understand that this can be an overwhelming and daunting time.

To protect your best interests and achieve the outcomes you deserve, you need to be supported by experienced NSW Criminal Law experts who can answer your questions, provide tailored advice and effectively present your case in Court.

This is where our team at Daniel Wakim Law Firm can help.

As Criminal Law Practitioners, we offer expert legal assistance by managing and liaising with police and advising you of your rights at every step along the way. Our goal is to help you navigate your situation so that you can make the right decisions, all without being influenced purely by emotion.

Gain clarity, certainty and confidence when navigating NSW Criminal Law matters

At Daniel Wakim Law Firm, we can advise you of your rights and assist in managing your criminal case to help you achieve a just result.

So, whether you’re looking to have an initial chat about your own matter, or you require ongoing support and assistance for your clients, we’re here to assist you.

Just book a no-obligation, free discussion today to discuss your needs.