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How A Court Determines Whether To Grant Bail

Bail is the conditional release of a person who has been charged with criminal offences back into the community before the matter has been finalised. Bail may be granted by police or by a court. The primary considerations when deciding whether to grant bail are ensuring that the accused attends court to finalise the charges and protecting the community and alleged victims. This article outlines how decisions about whether to grant bail are determined in New South Wales.

What does the court consider when deciding whether to grant bail?

Bail in New South Wales is governed by the Bail Act 2013. Section 18 of the Bail Act sets out an exhaustive list of factors that must be assessed when making a decision about an accused’s bail. These include:

  • The person’s background, including their criminal history, circumstances and community ties;
  • The nature and seriousness of the offence/s;
  • The strength of the prosecution case;
  • Whether the person has a history of violence;
  •  Whether they have ever committed a serious offence while on bail;
  • Whether they have a history of compliance or non-compliance with court orders including bail orders, supervised orders and parole orders;
  • Whether they have criminal associations;
  • How long they are likely to spend in custody if refused bail;
  • Any special vulnerability the person has.
  • The behaviour of the defendant towards any alleged victims and their families.

There are also particular factors that must be considered when a person is granted bail after a finding of guilt. 

What is ‘unacceptable risk’?

Under Section 19 of the Bail Act, the court must refuse a person bail where there is an unacceptable risk that if granted bail the accused will do certain things. These are:

  • Fail to appear at any proceedings for the offence.
  • Commit a serious offence,
  • Endanger the safety of victims, individuals or the community; and/or
  • Interfere with witnesses or evidence.

What is a serious offence?

There are a number of considerations in determining whether an offence is a ‘serious offence’ for the purposes of section 19. These are:

  • Whether or not the offence is a sexual or violent one, or involves the possession or use of an offensive weapon or instrument;
  • The likely effect of the offence on any alleged victim and on the community generally;
  • The number of offences the person has been charged with;
  • Any other factors that the court may consider relevant.

Two-step process in deciding whether to grant bail

When deciding whether to grant a person bail, courts must consider two questions. These are:

  • Are there any bail concerns; and
  • If so, are there any conditions that may mitigate those concerns.

The consideration of these two factors will then determine whether or not there is an unacceptable risk.

Bail after a conviction where imprisonment will be ordered

Under section 22B of the Bail Act, where a person has been convicted or pleaded guilty to an offence, the court must grant them bail or continue their bail only if special or exceptional circumstances can be established. In all other situations, where the person has been found guilty and are going to be sentenced to actual imprisonment, bail must be denied (where the person is in custody) or revoked (where they are on bail).

A person who applies for bail, or seeks to have their bail continued in this situation, must satisfy the ‘special or exceptional circumstances’ test as well as the other applicable tests.

Bail Conditions can alter decision on whether to grant bail

When a person applies for bail and there are concerns that arise from the factors outlined above, then the court must consider whether there are conditions that could be imposed that would sufficiently mitigate those concerns. Under Section 20A of the Bail Act, bail conditions are only to be imposed if the court is satisfied that those conditions are:

  • Reasonably necessary to address a concern;
  • Reasonable and proportionate to the offence;
  • Appropriate to the concern;
  • No more onerous than necessary;
  • Reasonably practical to comply with; and
  • There are reasonable grounds for the Court to believe that that condition is likely to be complied with.

Determining Unacceptable Risk

After going through this two-step process, the court will determine whether there is an unacceptable risk in granting bail. the court will then take action based on its assessment. If there are no bail concerns, bail should be granted unconditionally. If there are concerns, but these can be reasonably mitigated by bail conditions, bail must be granted conditionally. If the court has determined there are bail concerns and no bail conditions could reasonably be imposed to allay the concerns, then there is an unacceptable risk and bail must be refused.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

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...

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