Overview
In New South Wales, if you are charged with a crime, you may be remanded or released on bail. Bail is the conditional release of the accused to the community before the case is resolved. A person may be acquitted on bail by the police or a court. The most important considerations in deciding whether to release an individual on bail are the need to ensure that the accused appears in court to answer the charges, and the need to protect the community, including the alleged victim. It’s a necessity. This article explains how bail applications are decided in New South Wales.
What is ‘unacceptable risk’?
Bail in New South Wales is governed by the Bail Act 2013. Under Section 19 of the Bail Act, all bail applications include consideration of the “unacceptable risk” test. This test requires the court to deny bail if there is an unacceptable risk that the defendant will do a certain thing if bail is granted. A security deposit must be refused if there is an unacceptable risk such as:
- Do not appear in court for a crime.
- Committing a serious crime while on bail,
- Endanger the safety of the victim or the entire community; or
- Interfering with witnesses or evidence.
Deciding bail applications
Section 18 of the Bail Act sets out the factors that must be evaluated in deciding to apply for bail, these are:
- Background of the accused, including criminal history, circumstances, and community ties.
- The nature and seriousness of the alleged crime.
- Intensity of criminal case
- Whether the defendant has a history of violence.
- Whether the defendant committed a serious crime while in custody.
- Whether the defendant has previously complied or disobeyed court orders, including bail orders.
- Whether the accused has a criminal organization.
- How long is the defendant expected to be in custody if bail is denied?
- Whether the suspect has special protective needs that would make imprisonment more difficult for him.
- Defendant’s conduct towards the victim and her family.
‘Show cause’ offences and bail applications
If a person is charged with a particular serious crime and is requested to be released on bail, the court must deny bail unless the person shows reasons that the detention was unjustified. If the individual can provide reasons why detention is unjustified, they must prove to the court that they have passed the “unacceptable risk” as tested above.
“Show Cause” crimes include crimes punishable by life imprisonment, such as murder and manslaughter; serious crimes, including having sex with a child under the age of 16; includes serious crimes of personal violence; convicted of a serious personal violent crime.
Bail conditions may mitigate court’s concerns about bail
When considering an application for bail, the court must consider two issues:
- Do you have bail concerns (security deposit etc.)? And
- If so, are there any bail conditions that might mitigate these concerns?
Under section 20A of the Bail Act, bail conditions may only be imposed if the court finds that:
- Reasonably necessary;
- Appropriate and proportionate to crime.
- Suitable for the problem;
- No more hassle than necessary.
- Reasonably practicable for the defendant. And
- May be complied with.
After considering whether there are any concerns about bail and whether the terms and conditions address those concerns, the court will decide whether there is unacceptable risk in granting bail. If there are no concerns about security deposits and other bail concerns, it should definitely be granted. If you have concerns about a deposit and cannot impose reasonable conditions to mitigate them, the risk is unacceptable and the deposit must be refused.
Bail applications after findings of guilt
If a person requests bail or an extension of bail after being convicted of a criminal offense but before being convicted, the court may grant bail if necessary. In this case, the generally imposed bail conditions include the individual’s participation in and compliance with an intervention, treatment, or rehabilitation program.
If a person is convicted of a criminal offense and sentenced to actual imprisonment, the court may grant that person bail only if it is convinced that special and unusual circumstances exist. If a person is convicted and sentenced to prison, the court must deny bail (if in custody) or revoke bail (if already on bail).
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