This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Will Bail Be Granted? (NSW)
When a person has been charged with criminal offences, they may be remanded in custody or granted bail until the matter is finalised. This article outlines the steps a court must go through when deciding whether bail should be granted. In New South Wales, bail is governed by the Bail Act 2013.
Is the offence a “show cause” offence?
When a court is considering whether to grant a person bail in New South Wales, the first step is to determine whether or not the offence they are charged with is a show cause offence. If it is a show cause offence, then the accused must show cause as to why their continuing detention is not justified. If they are able to show that it is not, the court will then determine whether or not releasing them will pose an unacceptable risk. This process is illustrated in the diagram below.
Does the accused pose an unacceptable risk?
If the accused has shown cause, or if they have been charged with an offence for which they are not required to show cause, the court will apply a two-step test to determine whether or not they are an unacceptable risk.
First, the court must determine whether or not there are bail concerns. If any concerns are identified, the second step is to determine whether there are any relevant conditions that could be imposed to mitigate the court’s concerns.
This process allows the court to determine whether if the accused is granted bail, there will be an unacceptable risk to the safety of the victim and the community, or of the accused failing to appear at court. 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.
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