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

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:

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).

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:

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 cl 1 as:

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

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 A similar situation arises if charges are withdrawn and replaced with other charges. See Iongi v R [2022] NSWCCA 42 for a practical example.

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).

Note 6. Section 22C provides a temporary (12 month) limitation on the grant of bail to a young person aged 14–17 (inclusive) for a relevant offence (certain motor vehicle theft, break and enter, and performance crime offences) when on bail for a relevant offence (see Bail at [38-040]).

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:

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].

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

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

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

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

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

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.

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.

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).

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.

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:

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).

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

Step 1.

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 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

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 their 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 v Tikomaimaleya [2015] NSWCA 83 at [25]. Moukhallaletti v DPP [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.

Note:

Nothing in s 28B, which relates to an electronic monitoring requirement for a “serious domestic violence offence” (which is a show cause offence: s 16B(1)(c1)), requires or permits a bail authority to be satisfied the accused’s detention is not justified, or that there is no unacceptable risk, on the basis a bail condition with an electronic monitoring requirement may be imposed: s 28B(3)(b).

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)

• a serious domestic violence offence as defined in s 4(1), which includes an offence under Pt 3 Crimes Act 1900, committed against an intimate partner, with a maximum penalty of 14 years imprisonment or more: s 16B(1)(c1) (see Lawcodes list of Pt 3 Crimes Act offences with a maximum penalty of 14 years imprisonment or more)

• a coercive control offence under s 54D Crimes Act: s 16B(1)(c2)

• certain serious indictable offences under Pts 3 or 3A Crimes Act 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 or s 22B applies, then the special or exceptional circumstances test applies: ss 22A(2), 22B(2) (see step 1(b) below).

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

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)

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)

• the accused’s behaviour which may constitute domestic abuse under s 6A(2) Crimes (Domestic and Personal Violence) Act 2007: s 18(1)(d1)

• 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 acknowledgments 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 or a domestic violence offence (see s 4(1)) against an intimate partner, 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).

Note:

Nothing in s 28B, which relates to an electronic monitoring requirement for a “serious domestic violence offence” (which is a show cause offence: s 16B(1)(c1)), requires or permits a bail authority to be satisfied the accused’s detention is not justified, or that there is no unacceptable risk, on the basis a bail condition with an electronic monitoring requirement may be imposed: s 28B(3)(b).

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).

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):

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).

Note:

Nothing in s 28B, which relates to an electronic monitoring requirement for a “serious domestic violence offence” (which is a show cause offence: s 16B(1)(c1)), requires or permits a bail authority to be satisfied the accused’s detention is not justified, or that there is no unacceptable risk, on the basis a bail condition with an electronic monitoring requirement may be imposed: s 28B(3)(b).

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):

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.

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):

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].

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

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).

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.

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:

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

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

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

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

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:

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].

Note:

If a grant of bail includes an electronic monitoring requirement under s 28B, the bail authority must provide the accused with information about their obligations under s 31G of the Bail Regulation 2021, with the bail acknowledgment: s 31D Bail Regulation.

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.

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.

Note:

In relation to a bail condition imposing an electronic monitoring requirement under s 28B, if police receive a notice the electronic monitoring equipment is not functioning correctly they must ensure it is dealt with in accordance with s 77: s 31I Bail Regulation 2021.

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: s 79(3), (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.

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).

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

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).

Note:

In relation to a bail condition imposing an electronic monitoring requirement under s 28B, if the accused makes a variation application following receipt of a notice the electronic monitoring equipment is not functioning correctly, the court must list the application for hearing as soon as practicable: s 31I Bail Regulation 2021.

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

Clause 20 Bail Regulation 2021 provides:

Note:

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

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.

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:

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 right to liberty and presumption of innocence and the matters listed in s 18 of the Bail Act 2013 may inform this consideration: R v Weatherall [2023] NSWSC 710 at [10], [16]. It was also observed in R v Weatherall at [10] that the applicant must establish the s 15AAA circumstances on the balance of probabilities in accordance with s 32 Bail Act, and that to suggest there is a “heavy onus” upon the applicant puts an impermissible gloss on the provision.

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).