What are My Chances of Being Granted Bail?
When a person has been charged with a criminal offence, they will be remanded in custody until the finalisation of their matter, unless they are granted bail initially by police or if refused, then by a Magistrate or Judge in Court. This article explores the relevant test when making a bail determination and factors that go in and against your favour when applying for bail. In New South Wales, bail is governed by the Bail Act 2013 (the Act).
1. Show Cause
The first step when considering a grant of bail, is to determine whether the offence is considered a Show Cause offence. A list of Show Cause offences can be found under section 16B of the Act. If the offence you have been charged with is captured by the section, you will first need to show cause as to why your detention is not justified. The following factors can be taken into consideration to Show Cause:
- Full time custody is not inevitable
- Medical/health impairments
- First time in full time custody
- Care responsibilities
- Strength of the Prosecution case
- Strong familial/community ties
- Bugmy factors
If Show Cause has been met, then the next step is to satisfy the unacceptable risk test. Alternatively, If the offence that you are applying for bail for is not a show cause offence, the only test that needs to be met is unacceptable risk.
2. Unacceptable Risk
The Court must determine whether or not there are bail concerns or risks. If any concerns are raised, they must then determine whether there are any bail conditions that could be imposed to mitigate the Court’s concerns. The relevant test is outlined in section 19 of the Act and is as follows:
- A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk.
- “unacceptable risk” is an unacceptable risk that the accused person, if released from custody, will–
If there are no concerns, bail must be granted. If there are bail concerns but these concerns can reasonably be mitigated by the imposition of one or more conditions, bail must be granted conditionally. If there is an unacceptable risk that cannot be reasonably mitigated, bail must be refused.
Matters to be considered when granting bail
Section 18 of the Act contains a detailed list of considerations that the Court considers when deciding whether to grant bail. These include the following:
| (a) Background, including criminal history, circumstances and community ties
(b) Nature and seriousness of the offence (c) The strength of the prosecution case (d) History of violence (e) Previous ‘serious offence’ while on bail (f) History of compliance, previous warnings re compliance |
(g) Criminal associations
(h) Time in custody if bail refused (i) Likelihood of full-time custody (j) Appeal – reasonably arguable (k) Special vulnerability or needs – youth, Aboriginal, cognitive impairment or mental health (l) Need to prepare/obtain advice (m) Need to be free for other lawful reason |
(n) Conduct towards victim or family of victim after the offence
(o) Attitudes of victim as to concern of endangering safety (if ‘serious offence’) (p) Conditions to address concerns (q) Terrorist associations (r) Statements in support of terrorism/extremism (s) Association with groups advocating support for terrorism/extremism |
Bail Conditions to Ameliorate Risk
If any of the above bail concerns have been raised, you then have the opportunity to propose bail conditions to ameliorate the risk so that it is not considered an unacceptable one. Common bail conditions include:
- A condition that requires you to reside at a specified residential address
- A reporting condition that requires you to report to your local Police Station on a specified basis
- A curfew condition which precludes you from leaving your place of residence between certain hours of the day or night
- A condition that restricts you from attending a specified location or suburb or being within a certain distance from a location
- A condition that prohibited you from contacting/associating with a named person
- A condition that prohibits you from consuming drugs or alcohol with or without a condition that allows police to enforce the condition but performing tests on you
- A condition that requires you to attend a residential rehabilitation centre or attend a rehabilitation course
- A condition that requires an acceptable person to forfeit money for your release which will be returned to the acceptable person after the matter is finalised
Bail after a conviction where imprisonment will be ordered
If a Court is making a decision about bail in a matter where a person has already been convicted of or has already pleaded guilty to an offence and is going to be sentenced to a term of actual imprisonment, bail must only be granted if the Court is satisfied of special and exceptional circumstances. In any other matter where a finding of guilt has been recorded and imprisonment will be imposed, the person must be refused bail (if they are in custody) or have their bail revoked (if they are in the community).
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Emily Wood-Ward
Emily Wood-Ward is a Criminal Lawyer based in Sydney bringing vast experience from working in both public and private practice. She has experience appearing and instructing counsel in the Local, District, Supreme and Coroners Courts of New South Wales. Emily has honed fierce advocacy skills from her experience working with incredibly vulnerable and disadvantaged clients whilst working for the Aboriginal...
