Bail

[20-000] Introduction

The Bail Act 2013 commenced on 20 May 2014. For a brief history of the amendments to the Act since its commencement, and their impetus, and also a discussion of issues associated with bail applications, see G Brignell and A Jamieson, “Navigating the Bail Act 2013”, Sentencing Trends & Issues, no 47, Judicial Commission of NSW, 2020 at p 3.

[20-020] Legislative purpose of the Act — s 3

Concerning the purpose of the Bail Act 2013, s 3(1) provides:

The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions.

[20-040] What is bail? — s 7

Bail is defined in s 7 of the Act as “authority to be at liberty for an offence”, subject to limitations in s 14: s 7(1). Bail can be granted to any person accused of an offence: s 7(2).

Section 14 limits that entitlement in the following manner:

  • bail is not met until a person signs a copy of a bail acknowledgment and it is given to a bail authority and all pre-release requirements for bail (including character acknowledgments under s 27) are met: s 14(1)

  • a person is not entitled to be at liberty on those occasions the person is required to appear before a court: s 14(2).

Under s 85(1), a court may also revoke bail when bail security deposited under a bail condition is no longer intact. The court cannot revoke bail unless the person has been given written notice (s 85(3)(a)) and 28 days to demonstrate to the court either that the bail is still intact or to arrange for the deposit of replacement security: s 85(3)(b).

[20-060] Bail decisions that may be made — s 8

[20-080] Persons for whom a bail decision may be made

A bail decision may be made in respect of a person accused of an offence: s 8(1). In particular, the bail decisions which may be made are:

  • releasing an offender without bail (s 8(1)(a))

  • dispensing with bail (s 8(1)(b))

  • granting bail (with or without conditions (s 8(1)(c)),

  • refusing bail (s 8(1)(d)).

Bail decisions may also be made in respect of persons who are not accused of any offence: s 8(3) and Sch 1 of the Act. This arises in two circumstances. The first is when a person is brought before the court in proceedings for the administration of sentence, defined in Sch 1[1] as:

  • proceedings for a failure to comply with conditions of a community correction order or conditional release order

  • Children’s Court proceedings for failure to comply with good behaviour bonds, probation orders or outcome plans under the Young Offenders Act 1997

  • applications to extend/revoke community service orders for adults and children.

The second is when another Act confers power on a court to make a bail decision: Sch 1[2]. The following are examples:

  • persons arrested by warrant for failing to comply with subpoenas or non attendance as witnesses under the following Acts: Children and Young Persons (Care and Protection) Act 1998, Coroners Act 2009 and the Criminal Procedure Act 1986

  • persons arrested under an interstate arrest warrant, s 88 Service and Execution of Process Act 1992 (Cth).

Note 1. Bail decisions cannot be made if substantive proceedings for an offence have concluded and no further substantive proceedings are pending: s 8(2).

Note 2. If a bail decision has been made in relation to specific offences and additional offences are laid in court, the previous bail does not apply to those offences and is taken to be dispensed with unless an order is made: s 10(3). The prosecution is responsible for making an application concerning bail for the additional offences. A similar situation arises if charges are withdrawn and replaced with other charges.

Note 3. Section 10 enables a court to dispense with bail and s 10(3) identifies those circumstances when the court is taken to have dispensed with bail for an offence.

Note 4. The Bail Act 2013 does not apply to overseas extradition proceedings: see s 49B Extradition Act 1988 (Cth).

Note 5. The Bail Act does not apply to those offences in the Criminal Code (Cth) set out in s 15AA Crimes Act 1914 (Cth), which provides for a presumption against bail for particular Commonwealth offences or the Commonwealth child sex offences specified in s 15AAA of the Act (as to the latter see [20-820] below).

[20-100] Duration of bail — s 12

Once granted, bail is deemed to continue until either it is revoked, or the substantive proceedings are concluded: s 12(1). For that reason, there is no longer a requirement to order “bail to continue”.

Section 6 defines the “conclusion of proceedings” to include:

  • disposition of the proceedings

  • when a person has been convicted and sentenced for an offence.

Note:

Committal for trial or sentence is not the conclusion of proceedings in relation to bail: s 6(3). Bail continues to operate.

See also Bail on appeal at [20-800].

[20-120] Bail applications that may be made

Only the following three applications may be made under the Act:

  • a release application — which may be made by the accused under s 49 for bail to be granted or dispensed with

  • a detention application — which may be made by the prosecutor under s 50 for the refusal or revocation of bail or for the grant of conditional bail, or

  • a variation application — which may be made by any “interested person” as set out in s 51 for a variation in bail conditions.

Section 16 sets out the key features of bail decisions and defines:

[20-140] Power to hear bail application:

The Act contains the following general provisions as to when a court has the power to hear a bail application:

  • proceedings for the offence are pending in that court: s 61

  • the court has convicted the person of the offence and an appeal against the conviction or sentence is pending in another court but the person has not yet made their first appearance before the other court: s 62

  • the application is for the variation of a bail decision made by the court: s 63.

Section 64 sets out powers specific to the Local Court (which includes where relevant the Children’s Court and the Drug Court) to hear:

  • a release application or detention application in respect of a person who is (s 64(1)):

    • accused of an offence, where the person is brought or appearing before the court, or

    • an appellant from a decision of the Local Court to the District Court, Land and Environment Court or Supreme Court under the Crimes (Appeal and Review) Act 2001, where the person is not brought or appearing before the court.

  • a bail application where a bail decision has been made by an authorised justice or police officer: s 64(3)

  • a variation application where a bail decision has been made by a higher court (although pursuant to s 57(1), where a higher court has imposed a bail condition that it has directed is not to be varied, such a condition may only be varied with the consent of the accused and the prosecutor): s 64(4).

[20-150] Jurisdictional issues and restrictions on the Local Court

The Local Court does not have jurisdiction to hear bail applications where:

(a) 

a person has made their first appearance before the District or Supreme Courts: s 68(1). However, this is subject to the following exceptions:

  • when a person has been arrested on a warrant or an offence has been remitted to the Children’s Court or Local Court following proceedings in the District or Supreme Courts: s 68(2)

    Note:

    This extends to bench warrants issued by Judges of the District and Supreme Courts: s 312 Criminal Procedure Act 1986.

  • when the accused and prosecutor consent to the Local Court hearing a variation application: s 68(2A)

  • when the accused breaches bail conditions imposed by the District or Supreme Courts and is brought before the Children’s Court or Local Court: s 78. See Enforcement of bail requirements and breaches of bail conditions at [20-580].

    Note:

    The restrictions on the Local Court’s powers in relation to bail in ss 59–70 are contained in Pt 6 of the Act. Part 6 does not limit the powers of a court under Pts 8 or 9 (which confer powers to vary bail decisions in connection with enforcement and security requirements and includes s 78): s 60.

(b) 

a person has appeared before the Supreme Court for a bail application, although the Local Court can hear a further bail application if:

  • the substantive matter is still before the Local Court, and

  • the person appears, and

  • the court is satisfied special facts or circumstances justify hearing the bail application: s 69(1).

Note:

This does not prevent the court from hearing a detention application arising from a failure to comply with bail conditions pursuant to s 78: s 69(3).

(c) 

a higher court bail decision directs that bail not be varied. However, in these circumstances bail may be varied by the Local Court if both parties consent: s 57(1).

[20-160] Bail decision on first appearance upon court’s own motion — s 53

A court may, of its own motion, grant bail to a person on the first appearance even if a release application is not made. This power is discretionary and is only to be exercised to benefit the accused: s 53(2). However, this does not apply to show cause offences unless a bail application is made: s 53(4).

Under the Bail Regulation 2021, a release or variation application may be made orally by an accused: cll 16 and 20.

Note:

this provision may be utilised where a self-represented person appears in custody. The court may take into account the nature of the charge, the reasons outlined by a police officer or authorised justice for refusing bail, and the presentation of the accused before the court.

[20-200] Deferral of bail decision due to intoxication — s 56

The court may defer making a bail decision where the person is intoxicated: s 56(1). Section 4 defines an intoxicated person as someone who “appears to be seriously affected by alcohol or another drug or a combination of drugs”.

A court may adjourn the proceedings for no longer than 24 hours. In that circumstance, the court is to issue a warrant remanding the person to a correctional centre or other place of security until further hearing of the matter: s 56(2).

Note:

It is suggested confirmation is sought with the relevant custody authority on the record that it has been appropriately investigated that the person’s presentation as “intoxicated” is not due to possible medical reasons.

[20-220] Applications to be dealt with expeditiously

Section 71 requires a bail application to be dealt with “as soon as reasonably practicable”.

An application by an accused on their first appearance for a release or variation application in the substantive proceedings for an offence must be heard: s 72(1).

A court is not to decline to hear the application because notice has not been given to the prosecutor, but may adjourn the hearing in order to enable notice to be given to the prosecutor if this has not occurred and the court considers it necessary in the interests of justice: s 72(2).

[20-230] Persons arrested for extradition proceedings or extradited persons

Bail for persons subject to extradition proceedings must also be heard as expeditiously as possible: see further, [46-020] and [46-060] in relation to interstate extradition; [46-100] in relation to overseas extradition and [46-160] in relation to extradition to New Zealand.

Note:

Where a written application is received from a person in custody for a release application to be listed prior to the next adjourned date, the following should be considered:

  • the length of time the application may take

  • notice is required for other parties

  • the availability of the parties

  • available court dates and other listings

  • persons in custody should take priority over other listings.

[20-240] Practical application of the Bail Act

[20-260] Rules of evidence do not apply to bail proceedings — s 31

When exercising a function in relation to bail (except criminal proceedings for failure to appear or forfeiture of security proceedings: s 31(2)) the court may:

take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence: s 31(1).

[20-280] Standard of proof in bail proceedings — s 32

The test to be applied in bail decisions is on the balance of probabilities: s 32(1). However, this test does not apply to proceedings for an offence relating to bail: s 32(2).

[20-300] Test to be applied

The test for a bail decision is a two-stage process:

Step 1.

(a) 

certain serious offences under Pt 3 Div 1A — “Show cause requirement”, or

(b) 

terrorism-related offences — “Exceptional circumstances requirement” — s 22A.

Step 2. The unacceptable risk test (for all offences) under Pt 3, Div 2.

The two steps must not be conflated. Determination of the unacceptable risk test is not determinative of the show cause test: DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].

Step 1(a) “Show cause” offences

A bail authority must determine if the person is charged with a “show cause” offence. If yes, the Flow Chart 1 from s 16 applies.

Note:

If there is a dispute as to whether the offence is a show cause offence, the onus is on the prosecution to establish the criteria under s 16B.

 

Flow Chart 1: the statutory flow chart for the show cause requirement in s 16
Flow Chart 1: the statutory flow chart for the show cause requirement in s 16
Note 1.

If a person is charged with an offence that is not a show cause offence, the bail authority determines bail in accordance with Flow Chart 2 in s 16, the unacceptable risk test (see Step 2 below).

Note 2.

The show cause requirement does not apply to a person under 18 years of age at the time of the offence: s 16A(3).

The “show cause” requirement was described in the Second Reading Speech of the Bail Amendment Bill 2014 (see [20-000] above):

Division 1A introduces a “show cause” requirement for certain offences. New section 16A provides that for show cause offences bail must be refused unless the accused shows cause where his or her detention is not justified. This shift of onus is an important change.

Section 16A(1) provides that, with regard to a “show cause” offence, a bail authority must refuse bail unless the accused shows cause why his or her detention is not justified. In making this determination, the bail authority must consider all the evidence or information the bail authority considers credible or trustworthy in the circumstances: s 31(1); DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25]. Moukhallaletti v DPP (NSW) [2016] NSWCCA 314 at [50]–[56] outlines the basic principles applying to a determination of whether an applicant has shown cause that their detention is not justified.

The Act does not specify, and provides little guidance of, what will satisfy the “show cause” test. Nor does consideration of what might have satisfied the show cause test in an individual case assist since bail decisions of single judges of the Supreme Court are often not of precedential value and are no more than the view taken by the judge in the circumstances of the particular case: DPP v Zaiter [2016] NSWCCA 247 at [30], [33]. In “Navigating the Bail Act 2013”, these limitations were acknowledged but the discussion at pp 12–14 at least provides examples of what may satisfy the show cause requirement and demonstrates the complexities that may arise from the interplay of various factors.

If the accused can show cause, then the bail authority must apply the unacceptable risk test: s 16A(2). Section 16B exhaustively lists “show cause” offences. The list includes:

  • an offence punishable by imprisonment for life: s 16B(1)(a)

  • a serious indictable offence that involves an intent to have sexual intercourse with a person under 16 years old by a person aged 18 years or older: s 16B(1)(b)(i), (ii)

  • a serious personal violence offence as defined in s 16B(3), or an offence involving wounding or the infliction of grievous bodily harm, if the accused has previously been convicted of a serious personal violence offence: s 16B(1)(c)

  • certain serious indictable offences under Pts 3 or 3A Crimes Act 1900 or under the Firearms Act 1996 involving the use of a firearm, indictable offences involving the unlawful possession of a pistol or prohibited firearm in a public place, or serious indictable offences in the Firearms Act involving the acquisition, supply, manufacture or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm: s 16B(1)(d)(i), (ii), (iii)

  • a serious indictable or indictable offences involving a military style weapon under Pts 3 or 3A Crimes Act 1900 or under the Weapons Prohibition Act 1998: s 16B(1)(e)(i), (ii), (iii)

  • an offence under the Drug Misuse and Trafficking Act 1985 that involves a commercial quantity of a prohibited drug or plant: s 16B(1)(f)

  • an offence under Pt 9.1 of the Commonwealth Criminal Code that involves a commercial quantity of a serious drug: s 16B(1)(g)

  • a serious indictable offence that is committed by an accused while on bail or parole — in either case, whether granted in NSW or another jurisdiction: s 16B(1)(h)(i), (ii)

  • an indictable offence or an offence concerning compliance with a supervision order: s 16B(1)(i)

  • a serious indictable offence of attempting to commit an offence mentioned in s 16B(1)(j)

  • a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section: s 16B(1)(k).

  • a serious indictable offence committed where the person is the subject of a warrant authorising his or her arrest under the Bail Act, Pt 7 of the Crimes (Administration of Sentences) Act 1999, the Criminal Procedure Act 1986, or the Crimes (Sentencing Procedure) Act 1999: s 16B(1)(l).

A “serious indictable offence” is defined in s 4 Crimes Act 1900 to mean “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”. This definition includes offences such as larceny and most dishonesty offences. It also includes assault occasioning actual bodily harm (s 59 Crimes Act) and stalking/intimidation (s 13 Crimes (Domestic and Personal Violence) Act 2007).

Note:

if a show cause offence is also an offence to which s 22A applies, then the exceptional circumstances test applies: s 22A(2).

Unless a person shows cause why their detention is not justified, bail must be refused in accordance with s 16A(1).

Step 1(b) Terrorism related offences

Under s 22A(1), a bail authority must refuse bail, unless it is established that exceptional circumstances exist, when an accused is charged with:

(a) 

a terrorism offence under s 310J of the Crimes Act 1900, or

(b) 

any other offence for which a custodial sentence may be imposed, if the bail authority is satisfied the accused:

(i) 

has previously been charged with a Commonwealth terrorism offence or a s 310J offence and the proceedings relating to the offence have not concluded, or

(ii) 

has previously been convicted of a Commonwealth terrorism offence or a s 310J offence, or

(iii) 

is the subject of a control order made under Pt 5.3 of the Commonwealth Criminal Code.

If the offence charged is also a show cause offence, the exceptional circumstances test applies instead of the show cause test: s 22A(2). If exceptional circumstances are established, the unacceptable risk test then applies: s 22A(3).

Note:

A “Commonwealth terrorism offence” is an offence defined as a terrorism offence under the Crimes Act 1914 (Cth). Section 15AA of the Crimes Act 1914 which provides for a presumption against bail, applies to Commonwealth terrorism offences.

“Exceptional circumstances” — meaning

The exceptional circumstances test was described in the Second Reading Speech of the Bail Amendment Bill 2015 as follows:

The new test provides for a higher threshold than the existing show cause test so that bail will be granted only when the circumstances are exceptional. A similar test applies under section 15AA of the Commonwealth Crimes Act 1914 so that bail must not be granted for a Commonwealth terrorism offence unless exceptional circumstances exist to justify bail. While the new test will be applied on a case-by-case basis, New South Wales courts may find guidance in decisions under the Commonwealth provision.

Judge Harrison discussed the meaning of “exceptional circumstances” in connection with s 15AA in R v Naizmand [2016] NSWSC 836 at [8]–[13]; see also R v NK [2016] NSWSC 498 at [26]–[28]. Whether special or exceptional circumstances exist is to be assessed independently of whether there is an unacceptable risk referred to in s 19(2), although whether there is an unacceptable risk must nevertheless be considered by reason of s 22(3): McGlone v DPP (Cth) [2019] NSWCCA 99. In NK, Hall J observed that the phrase “admits to a degree of flexibility”: [31].

Factors found to constitute exceptional circumstances in the context of a bail application have been:

  • the youth of an accused: NK at [34], [40]

  • the strength of the Crown case (where that may be sensibly assessed)

  • the question of delay to committal and/or trial

  • principles of parity (insofar as they are applicable to a bail application): DPP v Cozzi (2005) 12 VR 211 at [22].

Step 2

If a person charged does show cause, establishes exceptional circumstances exist, or if they are not charged with a show cause offence, the unacceptable risk test applies. See Flow Chart 2 from s 16 (below):

 

Flow Chart 2: the statutory flow chart for bail decisions — s 16(3)
Flow Chart 2: the statutory flow chart for bail decisions — s 16(3)

The unacceptable risk test, contained in Pt 3, Div 2, applies to all offences. A bail authority must assess any bail concerns associated with the accused (ss 17 and 18) and, on the basis of that assessment, determine whether the accused is an unacceptable risk (s 19). If the bail authority is satisfied the person is an unacceptable risk, bail must be refused: s 19(1).

A bail concern is defined in s 17(2) to mean that a bail authority has a concern that the accused, if released from custody, will:

(a) 

fail to appear at any proceedings for the offence, or

(b) 

commit a serious offence, or

(c) 

endanger the safety of victims, individuals or the community, or

(d) 

interfere with witnesses or evidence.

In making an assessment of a bail concern under s 17 a bail authority is to consider only the matters listed in s 18(1). An exhaustive list of criteria includes the following:

  • the accused’s background (including criminal history, circumstances and community ties): s 18(1)(a)

  • the nature and seriousness of the offence: s 18(1)(b)

  • the strength of the prosecution cases: s 18(1)(c)

  • whether the accused has a history of violence: s 18(1)(d)

  • whether the accused has previously committed a serious offence while on bail: s 18(1)(e)

  • the accused’s history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders, good behaviour bonds, intensive correction orders, home detention orders, community service orders, community correction orders, conditional release orders, non-association and place restriction orders and supervision orders (s 18(1)(f)), and where a breach of bail is alleged, any warnings issued by police or bail authorities regarding non-compliance with bail acknowledgements or conditions (s 18(1)(f1))

  • whether the accused has any criminal associations: s 18(1)(g)

  • the length of time the accused is likely to spend in custody if bail is refused: s 18(1)(h)

  • likelihood of a custodial sentence being imposed if the accused is convicted of the offence: s 18(1)(i)

  • if convicted but not sentenced the likelihood of a custodial sentence being imposed: s 18(1)(i1)

  • whether the appeal against conviction or sentence pending before a court has a reasonably arguable prospect of success: s 18(1)(j)

  • any special vulnerability or needs the accused has including being an Aboriginal or Torres Strait Islander or because of youth or having a cognitive or mental health impairment: s 18(1)(k)

  • the accused’s need to be free to prepare for his or her appearance in court or to obtain legal advice: s 18(1)(l)

  • the accused’s need to be free for any other lawful reason: s 18(1)(m)

  • the conduct of the accused towards any victim of the offence or any family member after the offence: s 18(1)(n)

  • for a serious offence, the view of any victim or any family member of the victim (if available) in assessing if the accused could endanger the safety of victims, individuals or the community: s 18(1)(o)

  • the bail conditions that could be reasonably imposed to address bail concerns: s 18(1)(p).

  • whether the accused has any associations with a terrorist organisation (within the meaning of Div 102 Pt 5.3 of the Commonwealth Criminal Code): s 18(1)(q)

  • whether the accused has made statements or carried out activities advocating support for terrorist acts or violent extremism: s 18(1)(r)

  • whether the accused has any associations or affiliations with any persons or groups advocating support for terrorist acts or violent extremism: s 18(l)(s).

Section 18(2) provides a list of matters that are to be considered in deciding the seriousness of an offence but the matters that can be considered are not limited. The following are expressly listed in s 18(2):

  • whether the offence is of a sexual or violent nature

  • whether the offence involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900

  • the likely effect of the offence on any victim and on the community generally

  • the number of offences likely to be committed or for which the person has been granted bail or released on parole.

Section 19(1) provides that if, after making an assessment of any bail concerns, including what bail conditions may be imposed, the bail authority is satisfied that there is an unacceptable risk of all or any of the four criteria listed in s 19(2), bail must be refused.

That an accused has shown cause under s 16A that his or her detention is not justified is not relevant to a determination of whether there is an unacceptable risk: s 19(3).

Offences carrying a right to release – s 21

Under s 21(1), the court may make only the following bail decisions for offences with a right of release:

  • to release the person without bail

  • dispense with bail, or

  • grant bail (with or without conditions).

Division 2 of the Act (Unacceptable risk test — all offences) applies to right to release offences subject to s 21(1): s 21(5). Section 19(4) provides that bail cannot be refused for an offence for which there is a right to release.

A right to release applies to (s 21(2)):

  • fine-only offences

  • offences under the Summary Offences Act 1988, other than the following “excluded offences” listed under s 21(3):

    • obscene exposure (s 5), if the person has previously been convicted of an offence under that section

    • violent disorder (s 11A), if the person has previously been convicted of an offence under that section or a “personal violence offence” as defined in s 4, Crimes (Domestic and Personal Violence) Act 2007

    • offences relating to knives and offensive implements under ss 11B, 11C or 11E, if the person has previously been convicted of an offence under any of those sections or a personal violence offence

    • custody or use of a laser pointer in a public place (s 11FA), and

    • loitering by a convicted sexual offender near premises frequented by children (s 11G):

  • an offence that is being dealt with by way of a youth justice conference under Pt 5 Young Offenders Act 1997.

Note:

A right to release no longer applies to an offence where an accused has previously failed to comply with a bail acknowledgment or a bail condition forming part of a bail decision for the offence: s 21(4). A court before which a person appears, or is brought following non-compliance with a bail acknowledgment or bail condition, may refuse or revoke bail even where the offence is one for which there is a right of release, and there ceases to be a right of release if bail is revoked.

[20-320] Reasons to be recorded

Section 38 requires that the reasons for refusing bail or imposing bail conditions be recorded, as follows:

  • if bail is refused, record the reasons for refusing bail, including (if bail was refused, because of an unacceptable risk) the unacceptable risk or risks identified: s 38(1). A person who is bail refused must, as soon as practicable, be given a written notice setting out the “terms of the decision” and information regarding the review or variation of the decision required by the regulations: s 34

  • if imposing bail conditions, record why unconditional bail was not granted and the bail concern or concerns identified for imposing bail conditions: s 38(2)

  • if a security or character condition is imposed, include the reasons for imposing any security requirement or requiring any character acknowledgments: s 38(3)

  • if an accused has requested certain bail conditions and the court impose different conditions, record the reasons for doing so: s 38(4).

[20-340] Procedure for conditional release

Section 20 provides, subject to Pt 3 Div 1A and Div 2A, that if there are no unacceptable risks with respect to an accused, the bail authority must:

  • grant bail (with or without conditions)

  • release the person without bail, or

  • dispense with bail.

[20-360] General rules for bail conditions — s 20A

Bail conditions can only be imposed if a bail authority is satisfied that there are identified bail concerns: s 20A(1).

Bail conditions may be imposed but only if the court is satisfied of the following under s 20A(2):

  • The condition is reasonably necessary to address a bail concern (s 20A(2)(a)), and

  • The condition is reasonable and proportionate of the offence (s 20A(2)(b)), and

  • The condition is appropriate to the bail concern identified (s 20A(2)(c)), and

  • The condition is no more onerous than necessary to address the bail concern identified (s 20A(2)(d)), and

  • It is reasonably practicable for the accused to comply with the condition (s 20A(2)(e)), and

  • There are reasonable grounds to believe that the condition is likely to be complied with by the accused (s 20A(2)(f)).

Note:

A security requirement can only be imposed to address a bail concern of the person failing to appear. If that bail concern has not been identified, a security requirement cannot be imposed: s 26(5).

Table 1. Bail conditions that can be imposed
  Description When available
Conduct requirement: s 25

A requirement that the accused do or refrain from doing anything (other than to provide security for compliance with a bail acknowledgment).

For example, a place restriction, or not to contact or approach certain persons, or not to drink alcohol.

When necessary to address a bail concern.

Security requirement: s 26

A requirement that security be provided by the accused, or an acceptable person/s for compliance with a bail acknowledgment. This is a form of pre-release requirement: see Pre-release requirement: s 29.

Such a condition may include:

  • an agreement to forfeit a specified amount of money if the accused fails to appear

  • the deposit of a specified sum of money or other acceptable security with the court with an agreement that it be forfeited if the accused fails to appear.

The court is to determine what amounts to “acceptable security”: s 26(4).

Only for the purpose of addressing a bail concern that the person will fail to appear, and only where that purpose is not likely to be achieved by one or more conduct requirements.

Character acknowledgment: s 27

An acknowledgment given by an acceptable person to the effect that they are acquainted with the accused and regard the accused as a responsible person who is likely to comply with their bail acknowledgment.

The court is to determine what person/s or class/description of persons is an “acceptable person”: (s 27(3)).

Only where the purpose for imposing is not likely to be achieved by one or more conduct requirements: (s 27(3)).

Accommodation requirement: s 28

A requirement that suitable accommodation arrangements be made for the accused before their release on bail. This is a form of pre-release requirement: see Pre-release requirement: s 29.

An accommodation requirement is complied with when the court is informed by an appropriate government representative that suitable accommodation has been secured: s 29(4).

Only available where the person is a child or to enable the person to enter residential rehabilitation or where otherwise authorised by the regulations: s 28(3).

Note:

This condition cannot be imposed by a police officer.

Once imposed, a court must re-list the matter every two days, until the condition is met: s 28(4).

Pre-release requirement: s 29

A condition that must be complied with before the accused is released on bail. This may only be either:

  • a conduct requirement that the person surrender their passport

  • a security requirement, or

  • an accommodation requirement.

  • a requirement that one or more character acknowledgments be provided.

Upon compliance with a pre-release requirement (as set out in s 29 or the regulations), the accused is entitled to be released without any rehearing of the matter: s 29(5).

 
Enforcement condition: s 30

A condition imposed for the purpose of monitoring or enforcing compliance with another bail condition (the underlying bail condition) that requires the person to comply while on bail with one or more specified police directions given for that purpose.

This condition can only be imposed by a court and only following an application by the prosecutor. For example, where a person has a bail condition not to consume alcohol, an enforcement condition may be imposed that the person be breath tested by a police officer at certain times/places.

An enforcement condition must specify (s 30(4)):

  • the kinds of directions that may be given to the person while at liberty on bail

  • the circumstances in which each kind of direction may be

    given (so as to ensure compliance with the condition is not unduly onerous)

  • the underlying bail condition/s for which each direction may be given.

Only where considered reasonable and necessary, having regard to:

  • the person’s history (including their criminal history, particularly any serious offences or a large number of offences)

  • the likelihood/ risk of the person committing further offences while on bail

  • the extent to which compliance with any direction/s by the person may unreasonably affect another person.

The general requirements of bail conditions set out in s 20A do not apply to enforcement conditions: s 20A(3).

[20-380] Procedure where bail is refused

Bail can only be refused where the court is:

  • satisfied that cause has not been shown (s 16A(1) — where the relevant offence is a show cause offence), or

  • not satisfied that exceptional circumstances exist (s 22A(1) — where the relevant offence is a terrorism-related offence), or

  • following an assessment of bail concerns, that there is an unacceptable risk: s 19(1).

When bail is refused, the court must:

  • immediately record the reasons for refusing bail, including (if bail was refused because of an unacceptable risk) the unacceptable risk or risks identified: s 38(1)

  • give, as soon as practicable, a written notice setting out the “terms of the decision” to the person who is bail refused: s 34(1).

A court has a discretion to refuse bail when an accused is brought before the court on a first appearance and no bail decision has been made or bail refused and no bail application has been made: s 54.

[20-400] Limitations on the length of adjournment where bail is refused — s 41

Unless a person who is bail refused consents, a magistrate may only adjourn the matter for a period of not more than 8 clear days.

The following exceptions to this requirement are set out in s 41(2):

  • the person is in custody for some other offence, and

  • the court is satisfied there are reasonable grounds for a longer period of adjournment, and

  • the person would be in custody for the other offence for the balance of the longer period.

In Ahmad v DPP [2017] NSWSC 90 at [27]–[29], Campbell J expressed doubt as to whether strict compliance with the 8 day adjournment period was essential.

[20-420] Multiple applications for release following a decision to refuse bail — s 74

A further release application is not permitted unless there are grounds to make another application. The following grounds are set out in s 74(3):

  • the person was not legally represented when the previous application was dealt with and now has legal representation, or

  • material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

  • circumstances relevant to the grant of bail have changed since the previous application was made, or

  • the person is a child and the previous application was made on a first appearance for the offence.

A further detention application is not permitted unless there is new material information to be presented to the court, or circumstances relevant to the grant of bail have changed: s 74(4).

Note:

Changes to the Bail Act are not a change of circumstances pursuant to s 74(3)(c) or (4)(b). See Sch 3 cll 9(2) and 13.

What may amount to a change of circumstances in an individual case is likely to vary from case to case; it is a question of fact and degree: R v BNS [2016] NSWSC 350 at [45].

[20-440] Discretionary grounds to refuse to hear a bail application — s 73

The court may refuse to hear a bail application if satisfied:

  • that it is frivolous or vexatious (s 73(1)(a)), or

  • it is without substance or otherwise has no reasonable prospect of success: s 73(1)(b).

However, these discretionary grounds do not apply to a release or variation application made by an accused on a first appearance in proceedings for the offence: s 73(3).

[20-460] Procedure for fresh application — s 75

Any bail application heard by the court is to be dealt with as a new hearing. Evidence or information at the new hearing may be given in addition to, or in substitution for, that which was given in relation to an earlier bail decision: s 75.

[20-480] Procedures following a grant of bail

[20-500] Procedure if accused granted bail but remains in custody

If an accused who has been granted bail remains in custody because a bail condition(s) cannot be met, the manager of the correctional centre or officer in charge of the police station must notify the court in writing within 8 days of the person being received into custody: s 42.

On receipt of a notice, the magistrate will inform the registrar of the court of what action, if any, is to be taken. Ordinarily, the case should be relisted and the parties notified. Under s 55, the court has the power to conduct a hearing to vary bail conditions without an application, which may occur on the court’s own motion (or at the request of the accused or a police officer). This is regarded as a form of variation application.

In any variation application under s 55, the court may only review the existing bail, not the decision whether or not to grant bail: s 55(2). It is a limited review. Accordingly, pursuant to s 55(6), the court may only:

  • affirm the existing bail decision (as to the conditions of bail), or

  • vary the bail decision, but not to revoke or refuse bail.

[20-520] Stay of magistrate’s decision to grant bail for certain serious offences — s 40

Section 40 applies to “serious offences”, defined in s 40(5) as:

  • offences of murder, or

  • any offence punishable by life imprisonment, or

  • sexual offences involving intercourse, or an attempt to have sexual intercourse, with a person under the age of 16 yrs.

Where a decision is made to grant or dispense with bail for a serious offence, that decision is stayed if (s 40(1)):

  • a bail decision for the offence (other than a bail decision under s 54) has not previously been made by a court or authorised justice, and

  • a police officer or Australian legal practitioner appearing on behalf of the Crown immediately informs the court that a detention application is to be made to the Supreme Court, and

  • the police officer or Crown provides a copy of the written approval of an authorised officer or the Director of Public Prosecutions to make a detention application in the Supreme Court.

    Note:

    The prosecution must immediately notify the court and provide a copy of the written approval: s 40(1)(b).

The stay has effect until the first occurring of any of the following (s 40(2)):

(a) 

the Supreme Court affirms or varies the decision, or substitutes another decision for the bail decision, or refuses to hear the detention application.

(b) 

the Crown files with the Supreme Court or the Local Court a notice that the Crown does not intend to proceed with the detention application.

(c) 

4 pm on the day that is 3 business days after the day on which the decision was made.

While a stay operates, the accused is not entitled to be at liberty and remains in custody: s 40(3).

[20-540] Bail acknowledgments

The Bail Act 2013 introduces the concept of a bail acknowledgment in place of a bail undertaking.

Upon a grant of bail being made, the person is to be given a bail acknowledgment, which he or she is required to sign, a copy of which is to be given to the court before the person is entitled to release: ss 14(1), 33(1).

The bail acknowledgment is defined in s 33(2) as a written notice that contains requirements for the person to:

  • appear before the court at a specified day, time and place, and

  • notify the court of any change in the person’s residential address. This is a new requirement that exists independently of any residence condition.

Note:

A person who fails to reside at the address on the bail acknowledgment may be in breach of a bail acknowledgment, rather than failing to comply with a bail condition: Enforcement of bail requirements and breaches of bail conditions at [20-580].

[20-560] Requirement to appear — s 13

A person granted bail, or in respect of whom bail is dispensed with, is required to appear before a court and surrender to the custody of the court, when required to do so: s 13(1). In effect, a person who appears before a court following a bail decision (to grant bail or dispense with bail) is in the custody of the court until the court makes further orders in the proceedings.

The time the person is required to appear is when the matter is called at the court premises: s 13(3). Therefore, it is important to ensure prior to making any orders in a person’s absence that the case is called at the courthouse.

A court may excuse a failure to appear: s 13(4). A practical example is the receipt of a phone or written message and/or a medical certificate, which can be accepted by the court for non-attendance.

[20-580] Enforcement of bail requirements and breaches of bail conditions

[20-600] Failure to comply with bail conditions or bail acknowledgments — ss 77, 78

A police officer has a discretion under s 77(1) regarding what action may be taken where that police officer believes, on reasonable grounds, that the person has failed, or is about to fail, to comply with a bail condition or acknowledgment.

A police officer may take no action, warn the person, or take other action. If the police officer decides to arrest the person, or apply for a warrant for that person’s arrest, the person is then placed before the court. In those circumstances there has been no decision by a bail authority to refuse bail. It is for the prosecution to advise the court whether a detention application or a variation application is sought.

Persons arrested by police for failing to comply with bail conditions of the District or Supreme Courts regularly appear at Local and Children’s Courts including courts in remote locations. The nearest District or Supreme Court may often be hundreds of kilometres away. In s 78(6), relevant bail authority is defined to include the Local Court, which has jurisdiction to determine bail under s 78 for persons on bail to appear before the District and Supreme Courts when the person had failed, or was about to fail, to comply with a bail acknowledgment or bail conditions; see also s 69(3). (See Jurisdictional issues and restrictions on the Local Court, above, at [20-150].)

A failure to comply with a bail condition or bail acknowledgment is not an offence. It is a procedural mechanism for bail to be re-determined, if there has been a failure to comply with bail.

[20-620] Procedure for determination under s 78

1. 

Has the person failed, or is the person about to fail to comply with a bail condition or acknowledgment?

In most circumstances, a failure to comply will be admitted, for example, failing to report to a police station. However, in circumstances where a failure to comply is not admitted, a short hearing may be required to determine this issue:

  • the court must be satisfied on the balance of probabilities: s 32

  • the party asserting a failure to comply has the onus of proof

  • the rules of evidence do not apply: s 31

  • the court may take into account “any evidence or information that the bail authority considers credible or trustworthy in the circumstance”: s 31.

Note 1 A practical example of a person about to fail to comply is where a person has a conduct requirement not to leave NSW. Police do not have to wait until the person has actually crossed the border. A person who has purchased a plane ticket to Melbourne and boards a fight to Melbourne with luggage would satisfy this requirement.

Note 2 A detention application in relation to a person brought before the court cannot be adjourned without a bail decision being made. Such applications should be determined in accordance with the Act.

2. 

If satisfied a person has failed to comply with a bail undertaking, a court has the following options regarding what orders to make under s 78(1) or (2):

  • release the person on the original bail

  • vary the bail (which may include revoking bail).

Note:

A court may only revoke or refuse bail if satisfied a bail acknowledgment or condition has not been complied with and having considered all the alternatives the decision to refuse bail is justified: The unacceptable risk test still applies to proceedings under Pt 8 (Enforcement of bail requirements): s 78(3).

[20-640] Failing to appear — s 79

Failing to appear in accordance with a bail acknowledgment is a criminal offence: s 79(1). The penalty is either the maximum penalty for the substantive offence or 3 years imprisonment or a maximum $3,300 fine, whichever is the lesser: ss 79(3), 79(4).

A statutory defence of “a reasonable excuse” applies. The onus is on the person to prove reasonable excuse: s 79(2).

Note:

Section 80 deals with proceedings for the offence of failure to appear and s 94 contains facilitation of proof provisions for failing to appear proceedings.

[20-660] Variation of bail

[20-680] Bail variation on the court’s own motion on first appearance — s 53

On a first appearance by an accused, a court may, of its own motion, grant bail or vary a previous bail (but not so as to refuse bail). However, the court cannot grant bail for a show cause offence without an application: s 53(4).

This power may only be exercised to benefit the accused: s 53(2).

[20-700] Interested persons who may make a variation application — s 51

A variation application may be made by an “interested person” defined under s 51(3) as:

  • an accused to whom bail has been granted

  • the prosecutor in proceedings for the offence

  • the complainant, where the offence is a domestic violence offence

  • the person for whose protection an order would be made, where the grant of bail relates to AVO proceedings

  • the Attorney General.

Note:

where a bail condition imposed by a higher court is the subject of a direction that it not be varied, the consent of both the accused and the prosecutor for the condition is required before any variation is made by the Local or Children’s Courts: s 57; see also s 68(2A).

[20-720] Notice requirements for variation applications

No specific time frame is provided; however, reasonable notice of the application is required: s 51(5), (7).

Clause 20 Bail Regulation 2021 provides:

20

Making of variation application

(1) 

An interested person must make a variation application in writing and in the approved form.

(2) 

An accused person may make a variation application orally if the person is before the court.

(3) 

A court or authorised justice may make a decision on a variation application even if the application does not comply with subclause (1).

(4) 

An interested person may, in one variation application, make a variation application in relation to more than one offence committed or alleged to have been committed by the same person.

(5) 

If an accused person who makes a variation application is in custody at a correctional centre, the general manager of the correctional centre must forward the variation application, without undue delay, to the registrar of the court to which the application is made.

(6) 

In this section—

interested person has the same meaning as in the Act, section 51.

Note:

In determining a variation application, a court must not revoke bail unless this is requested by the prosecutor: s 51(9).

[20-740] Bail guarantors

[20-760] Variation applications affecting bail guarantors

The Bail Act itself does not require that a bail guarantor provide their consent to a variation of bail conditions. Section 36(3) provides that if a court varies a bail condition for entry into a bail security agreement, it must ensure that a person who has entered into an agreement is given a written notice setting out the terms of the condition as varied.

While there is no legislative requirement, it is recommended for procedural fairness that the views of a bail guarantor be considered in any variation application.

[20-780] Application by bail guarantor to be discharged from liability — s 83

Section 83(1) allows a bail guarantor to apply to a court to be discharged from liability under a bail security agreement at any time. An application may be made to “the court of appearance” (defined in s 83(6) as the court before which the person is required to appear) or the court that granted bail: s 83(2).

A bail guarantor cannot be discharged unless the accused is before the court: s 83(4).

Section 83(3) provides for the issue of a summons or warrant to bring the accused before the court for this purpose. The court must discharge the bail guarantor “unless satisfied that it would be unjust to do so”: s 83(4). Once a bail guarantor is discharged the security requirement of the bail acknowledgment is no longer intact. Pursuant to s 83(5), a court may:

  • vary the bail conditions, and

  • have the person taken into custody until those new conditions are met.

[20-800] Bail on appeal

Section 62 empowers the court to hear bail applications pending an appeal:

62

Power to hear bail application if sentence or conviction appealed

A court may hear a bail application for an offence if:

(a) 

the court has convicted a person of the offence, and

(b) 

proceedings on an appeal against sentence or conviction are pending in another court, and

(c) 

the person has not yet made his or her first appearance before the court in the appeal proceedings.

Section 12(2) permits a fresh bail decision to be made:

if, after the conclusion of substantive proceedings for an offence, further substantive proceedings for the offence are commenced.

An appeal against conviction or sentence falls within the meaning of substantive proceedings: see s 5(3). As the explanatory note to s 12(2) further states:

Note.

Proceedings for an offence generally conclude if a person is convicted of and sentenced for the offence. If an appeal against the conviction or sentence is lodged after that conclusion, bail is not revived, but a new bail decision can be made.

See also at [20-140] as to the additional power of the court to hear a bail application on appeal where the defendant is not present: s 64.

[20-820] Special bail provisions for Cth child sex offences

Section 15AAA of the Crimes Act 1914 (Cth) creates a presumption against bail for certain Commonwealth child sex offences (defined in s 3). It applies to bail decisions made from 23 June 2020 regardless of when the offender was charged with the relevant offence: Sch 7, Pt 2 [5(1)], Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020. Conduct which constituted a Cth child sex offence before 23 June 2020, but does not do so after that date, falls within the ambit of s 15AAA: Sch 7, Pt 2 [5(2)].

The Criminal Code offences to which s 15AAA relate include, but are not limited to:

  • sexual intercourse, or sexual activity, with a child outside Australia, including the aggravated forms of these offences: ss 272.8(1), 272.8(2), 272.9(1), 272.9(2) and 272.10

  • persistent sexual abuse of a child outside Australia: s 272.11

  • benefitting or encouraging an offence against Div 272 Child sex offences outside Australia: ss 272.18 and 272.19

  • aggravated offences of possession, control, distribution, or obtaining possession of child abuse material outside Australia: s 273.7

  • aggravated offences of using or possessing child abuse material obtained through a postal, or similar, service: s 471.22

  • use of an electronic service for child abuse material: s 474.23A

  • aggravated offences of using, possessing, producing, controlling or supply child abuse material obtained through a carriage service: s 474.24A

  • using a carriage service for sexual activity with a person under 16 yrs old including the aggravated form of that offence: ss 474.25A(1), 474.25A(2) and 474.25B.

These offences are in the table which forms part of s 16AAA of the Act. Additional offences falling within s 15AAA are also listed in s 16AAB which concerns sentencing for specified Cth child abuse offences which are subsequent offences.

Note:

in matters involving any Cth child sex offence it is good practice to ask the prosecutor whether s 15AAA applies to the particular offence.

Note:

except as provided for by ss 15AAA(1), (4), (5), (6) and (7) which relate to appeals related to bail decisions made under this section, s 15AAA does not affect the operation of a State or Territory law: s 15AAA(8).

[20-840] Onus on accused to satisfy court bail should be granted

Bail must not be granted for these offences unless the offender satisfies the court that “circumstances exist to grant bail”: s 15AAA(1). There is no definition of what those circumstances might be. In determining whether such circumstances exist, the following matters in s 15AAA(2) must be taken into account, insofar as those matters are relevant and known to the court:

  • the likelihood of the offender failing to appear

  • the likelihood the offender would commit further offences

  • whether there is a likely risk to the safety of the community or of causing harm to a person

  • the likelihood the offender would conceal, fabricate or destroy evidence or intimidate a witness

  • whether the offender was 18 years or older when the offence was committed

  • if the offender has pleaded guilty or been conviction of the offence, whether the offender would not be likely to undertake a rehabilitation program, or not be likely to comply with bail conditions related to rehabilitation or treatment.

The right to liberty and presumption of innocence and the matters listed in s 18 of the Bail Act 2013 may inform this consideration.

If bail is granted, reasons must be given: s 15AAA(3).

The Cth Director of Public Prosecutions and the accused have a right of appeal: s 15AAA(5). A bail decision is stayed pending receipt of advice that the Cth DPP intends to appeal and takes effect upon notice being given: s 15AAA(6). Note the time limits as to the duration of the stay in s 15AAA(7).