Law of Bail
1 September 2015
Historically bail was a form of property or money that a defendant put up in order that he be granted liberty until the date of his trial. The reason for the requirement was to ensure the defendant appeared at court on the next occasion. In the event the defendant fails to appear the bail amount is forfeited. In recent times bail legislation became increasingly difficult to navigate and as such the Parliament passed the Bail Act 2013 which has since been amended. The purpose of bail in the Act is to ensure the defendant:
1. attends court on the next occasion,
2. does not commit a serious offence,
3. does not endanger the safety of victims, individuals or the community, and
4. does not interfere with witnesses or evidence.
These considerations are broadly referred to as bail concerns.1
The new Act now divides bail applications (now known as release applications) into two types being:
1. Show Cause applications, and
2. Ordinary applications.
The Show cause application is the more difficult of the two and is for certain serious offences (and certain repeat offenders). It requires the accused person to show cause as to why his or her detention is not justified2 and if successful, the accused person must then demonstrate the elements of the ordinary application. Some examples of show cause offences are:3
1. offences that attract a penalty of life imprisonment,
2. firearms offences,
3. sexual assault of a minor,
4. a serious personal violence offence punishable by 14 years or more,
5. cultivate, supply or manufacture commercial quantity of a prohibited drug.
The ordinary application is for all other offences where the Crown must demonstrate that bail should be refused. The test for bail is whether there exists an unacceptable risk.4 Upon an application for release the court must undertake the following task:
1. Perform an assessment of the bail concerns,
2. If there exists no concerns bail must be granted,
3. If there exist bail concerns the Court may impose bail conditions,
4. If upon a determination of the bail concerns there exists an unacceptable risk which cannot be alleviated with the imposition of bail conditions bail must be refused.
Sometimes a person may already be on bail and the Crown or Police may lodge an application for the detention of that individual for some particular reason. This is known as the revocation of bail or in the new legislation a detention application.
Mersal & Associates are experienced in the area of (bail) release applications. Contact us for assistance.
- Bail Act 2013 (NSW) s17.
- Ibid s16A.
- Ibid s16B.
- Ibid s19.