Bail eligibility in NSW: the unacceptable risk test, bail conditions and bail refusals

Being arrested and charged with a criminal offence in NSW creates a lot of stress and uncertainty. If you are in this position, you will no doubt have many questions, which might include:

• Will I get bail?
• Will there be conditions imposed on my bail?
• What can I do if bail is refused?

Under the Bail Act 2013 (NSW) (“the Act”), the answer to these questions depends on whether you are charged with a show cause offence (offences of a more serious nature) and pose an unacceptable risk to the community if released from custody.

Is your criminal offence a show cause offence?

In NSW, more serious offences, such as serious indictable offences (e.g. murder) or serious domestic violence offences, are show cause offences. If you are charged with a show cause offence, bail will be refused unless you can “show cause” why detention is not justified.

The Bail Act does not set out what is required to “show cause.” However, section 32 notes that any assessment must be made “on the balance of probabilities”, and Courts have noted that relevant factors include:

• whether it is the person's first time in custody;
• any medical reasons;
• the potential sentence;
• the need to care for dependents; and
• the prospects of delay in reaching a hearing of the matter.

What is the unacceptable risk test when considering bail?

If the offence you are charged with is a show cause offence and you are able to show cause why detention is not justified, the “unacceptable risk” test will then apply. For offences that are not show cause offences, the “unacceptable risk” test is applied in the first instance.

Section 19 of the Bail Act provides that it is an unacceptable risk if the accused will:

1. fail to appear at any proceedings for the offence, or
2. commit a serious offence, or
3. endanger the safety of victims, individuals or the community, or
4. interfere with witnesses or evidence.

The Act sets out the matters that the Court is required to consider when determining whether someone presents an “unacceptable risk”. These include, for example:

• the seriousness of the offence;
• the accused person’s history of offending; and
• non-compliance with Court orders; and
• the strength of the prosecution’s case.

There are several matters the Courts must consider, and a full list can be viewed under Section 18 of the Act.

No one factor is determinative, and the Court is required to consider the full list (and only the list) contained in the Act.

Bail conditions

If the Court concludes that the person presents no unacceptable risk, then the Court must release them. However, the Court is still required to “assess any bail concerns”. A “bail concern” is a concern that a person will:

1. fail to appear at any proceedings for the offence; or
2. commit a serious offence; or
3. endanger the safety of victims, individuals or the community; or
4. interfere with witnesses or evidence.

The Court is required to refuse bail if satisfied there is an unacceptable risk that any of the above will occur.

If the Court is not fully satisfied that there is an unacceptable risk, it will next consider if there is a “concern” that any of the above will occur. It is clearly a lower requirement to be concerned rather than satisfied there is an unacceptable risk. As a result, if there is a “bail concern”, the Courts must still provide bail, however they might make that bail subject to “bail conditions”.

The possible scope of these bail conditions is set out in Part 3, Division 3 of the Act (sections 23-30A). Conditions can be imposed which regulate, among other things:

• conduct (e.g., a person cannot do certain things);
• security (e.g., a person has to pay money in the form of a bond); and
• electric monitoring (e.g., a person is required to wear an ankle monitor).

What happens if bail is refused

If bail is refused, typically, you will be held in custody until a judgment is reached in the substantive matter. That is, unless your bail application is reheard in the same Court or the refusal to give you bail is overturned on appeal in an appellate Court.

The Act prevents a Court from re-hearing a bail application unless “there are grounds for a further… application”. Those grounds are that:

1. the person was not legally represented when the previous application was dealt with, and the person now has legal representation; or
2. material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application; or
3. circumstances relevant to the grant of bail have changed since the previous application was made; or
4. the person is a child and the previous application was made on a first appearance for the offence.

If none of these grounds apply to your scenario, you are prevented from appealing your bail application in the same Court.

However, there may still be scope to appeal a decision in a higher Court if the Court that made the original decision made an error in law. It’s important to note that searching for an “error in law” does not mean re-hearing the application. It only means examining the original decision for an error. This means that, in effect, the appellate Court will not simply put themselves in the shoes of the decision-maker. Rather, it will only examine their decision to see if it was legally incorrect. Accordingly, such an appeal is inherently limited.

Get help from a criminal lawyer

If you are charged with an offence, you should contact one of our criminal law team members to obtain advice, including in relation to being released on bail or appealing a rejected bail application.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au