What is a bail application?

A bail application is an application in respect of bail, either made by an accused person, or the prosecution. In limited circumstances, an “interested person” may also make a bail application. 

These three main types of bail application are as follows:

1. a “release application” made by the accused person for bail to either be granted, or dispensed with;
2. a “detention application” made by the prosecution for bail to be refused, revoked, or for conditions of bail to be imposed on the accused person; and
3. a “variation application” which can be made by any “interested person, for the varying of conditions of bail. An “interested person” under section 51 of the Bail Act (NSW) includes:
   • the accused person;
   • the prosecutor;
   • the complainant (in proceedings for a domestic violence offence);
   • the person for whose protection order is or would be made, in the case of bail granted in an application under the Crimes (Domestic and Personal Violence Act 2007 (NSW); or
   • the Attorney General.

In each of these applications, it is essential that an accused person seek sound legal help and ensure they have the best criminal lawyers representing their case. Failure to obtain the best legal advice and a criminal lawyer to advocate for you in both bail applications and criminal trials can be the difference between your freedom, and remaining in custody.

Who has authority to make a bail decision?

In NSW, a bail decision must be made by a “bail authority”. A bail authority is generally either a Court or a police officer who is above the rank of sergeant.

Generally, the police will exercise the decision to grant bail in most criminal matters, however there are two main circumstances in which the matter must be brought before a Court to make a bail decision “as soon as practicable”:

1.  if the police, in the exercise of police powers to grant bail, decide to refuse bail; or
2. if the accused person has been arrested under a warrant which requires the accused person to be brought before a Court.

The Court responsible for a bail decision will generally be the appropriate Court with jurisdiction for the criminal matter being considered, either the Local Court, District Court or Supreme Court. A Court will have power to hear a bail application either when proceedings for the offence are pending in that Court, that court has convicted the person of the criminal offence and an appeal to another Court has been made but no appearance has been made, or where the application is for the variation of a bail decision made by that Court.

There are also specific restrictions on when the Local Court will have authority to hear a bail application – these largely relate to where the matter is already before the District Court or Supreme Court, subject to limited exceptions.

What happens during a bail application?

How a bail application proceeds will depend on the jurisdiction in which the application is heard. Below, we explore the difference between a bail application in a Magistrates Court, and a Supreme Court bail application. We also explain what is involved in an application for review of a bail decision, which is available in exceptional circumstances.

Magistrates Court Bail Applications

Most bail applications take place in a Magistrates Court. Generally, this will involve your solicitor mentioning the matter in which you appear, and that you are applying for bail. Any prosecution evidence (generally, a statement of facts relating to the alleged offence, and your criminal history) will be provided to the Court, and you and your solicitor will be given an opportunity to review these documents and make any objections to their use.

Following this, the Magistrate will consider documents which the prosecution provides, and which your solicitor provides on your behalf, and then seek guidance on whether the prosecution opposes bail. If the prosecution does not oppose bail, this will be a significant factor in favour of bail being granted. If not, the prosecution will need to provide evidence about the concerns they have, which will provide you with an opportunity to object to any or all of that material.

Following this, your solicitor will make submissions to the Court on your behalf, showing why bail should be granted in the circumstances. These submissions will aim to show that you do not pose an unacceptable risk, and may rely upon your criminal history, any community ties, mental health treatment plans and deal with the criteria under section 22 of the Bail Act.

The Magistrate will then review all of the material before it, as well as submissions made by your solicitor about the source of cash/security, and make a “bail decision”.

Supreme Court Bail Applications

Supreme Court bail applications are usually conducted via videolink, where the accused person remains in custody at a correctional centre. These proceedings are generally more formal than those in the Magistrates Court, and often involve a barrister acting on your behalf, as well as the police force being represented by the office of the Director of Public Prosecutions.

The procedure is fairly similar to those in the Magistrates Court, in that your solicitor will mention your matter, following which the judge will seek the prosecutions position on bail. If bail is not opposed, this will again be a significant consideration in favour of bail being granted to the accused person.

Following this, the prosecution (or “the Crown”) will provide the Court with documents which will aim to show the strength of the prosecution case, at which point you will be given an opportunity to negotiate with the prosecution about which documents are provided. Where any evidence contained in the documents is disputed, your solicitor may be permitted by the Court to examine the police officer to determine the strength of the prosecution case, and try to show why that evidence should not be relied upon by the judge.

You will then be given an opportunity to put forward your evidence in the matter. Your solicitor may provide evidence of your character, any factors which indicate a low likelihood of offending or that show you pose a low risk. Evidence may also be sought from a person (loved one or family member) where they are depositing cash as security for bail, a professional from a rehabilitation centre or similar, or even yourself.

As with proceedings in the Magistrates Court, your solicitor will then make a series of submissions that speak to the criteria under section 22 of the Bail act, and argue why bail should be granted. 

The judge will then either provide a bail decision, or adjourn the matter in order to provide the bail decision at a later time.

Magistrates Court review of bail application

In exceptional circumstances, a person may be entitled to apply to the Magistrates Court for the review of a bail decision. This is provided for under sections 42 and 42A of the Bail Act, which hold that any decision in relation to bail can only be reviewed, on application, if:

1. that Court has the power to make a bail order; and
2. the Court is satisfied that the bail applicant has shown:
   1. a change in circumstances relevant to the granting of bail since the Court’s decision; or
   2. the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the Court made the decision; and
3. for an application made by the accused person, the person has made 2 applications for bail in the Magistrates Court in the proceeding to which the bail relates.

How is a bail application decided?

Under section 8 of the Bail Act, a Court or other bail authority responsible for making a bail decision is able to make one of a number of decisions in response to a bail application, namely:

1. a decision to release the accused person without bail for the offence;
2. a decision to dispense with bail for the offence;
3. a decision to grant bail for the offence (with or without the imposition of bail conditions); or
4. a decision to refuse bail for the offence.

The decision will generally depend on a number of factors, with section 18 of the Bail Act providing that a bail authority must consider the following in an assessment of a bail application in NSW:

• the accused person’s background, including criminal record, circumstances and community ties
• the nature and seriousness of the offence
• the strength of the prosecution case
• whether the accused person has a history of violence (including family violence or domestic violence)
• whether the accused person has previously committed a serious offence while on bail
• whether the accused person has a history of compliance or non-compliance with any of the following:
  • bail acknowledgements
  • bail conditions
  • apprehended violence orders
  • parole orders
  • home detention orders, good behaviour bonds or community service orders
  • intensive correction orders
  • community correction orders
  • conditional release orders
  • non-association and place restriction orders
  • supervision orders.

This places significant weight on the personal circumstances of the accused person, with the grant of bail being contingent upon a range of factors that go to the level of risk that the accused person presents to society. The outcome of a bail application will generally rely on submissions made by an accused person on one hand, and the prosecution on the other, to show whether or not the accused person poses an unacceptable risk if released from the custody of a police officer or other lawful authority.

Under the Bail Act, if a person represents an “unacceptable risk”, which is defined under section 19 as an unacceptable risk that an accused person, if released from custody, will:

• fail to appear at any proceedings for the offence
• commit a serious offence
• endanger the safety of victims, individuals or the community, or
• interfere with witnesses or evidence.

Under section 20, if there are no unacceptable risks, then the bail authority must either grant bail, release the accused person without bail, or dispense with bail. Ultimately, this will mean that the person will be released from custody pending a further court date.

Will I get bail?

Under the NSW Bail Act, and in other Australian jurisdictions such as Victoria and Queensland, the granting of bail depends significantly on the personal circumstances of the accused person such as any criminal history. A bail decision will also depend on the seriousness of the offence and the likelihood of either further offences being committed by the accused person, or the non-compliance with bail, including any bail conditions imposed.

A bail authority can make a number of bail decisions when considering an application for bail, and it will be up to an accused person to argue that the bail decision they want, is the bail decision that should be granted in the circumstances of the matter. This is often a complex process, and can involve significant preparation and time and emotional energy.

It is therefore vital to ensure you seek expert legal advice about the procedural requirements involved in bail applications, and the factors that will help you either successfully seek bail, or ideally, be released without any bail requirements.