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 tests that a court must apply when deciding whether bail should be granted. In New South Wales, bail is governed by the Bail Act 2013.
The “show cause” test
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.
The “unacceptable risk” test
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.
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, it must grant bail only where satisfied that there are 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 at large).
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