What is Bail?

In NSW, according to the Bail Act 2013, bail is the authority to be at liberty for an offence or an alleged offence. The decision can be made by a police officer after you have been arrested and given a notice to attend Court. This is known as ‘police bail’. Section 44 of the Bail Act 2013 states that a police officer with the ranking of sergeant or above must make a decision as to bail as soon as reasonably practicable after an accused in police custody has been charged with an offence. An officer holding a rank higher than sergeant or in charge of a station can make a decision to:

  • release you without bail
  • grant bail (with or without the imposition of bail conditions), or
  • refuse bail.

If you do not receive police bail, a police officer must bring you before a Court as soon as practicable for a Magistrate to hear your matter or decide whether to grant you bail until a further appearance in Court. This is called ‘Court bail’.

What are show cause offences?

In some circumstances in making a bail application you will need to show that you are not a risk and that bail should be granted. A list of show-cause offences is found in section 16B of the Bail Act 2013. Any offence that attracts a jail term of life imprisonment and serious indictable offences such as sex offences are included in this section. 

The Court will keep you in custody for a show cause offence unless you are able to show there is no unacceptable risk that you will:

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

If there is no risk of any of the above occurring, your bail application should be granted. If there is a concern that releasing you will present one of the above risks, a determination will then need to be made as to whether the risk can be controlled by imposing a bail condition. If the risk is then deemed unacceptable, the Court must refuse bail. In determining whether a risk is unacceptable, the Court will consider a variety of factors including (but not limited to) the accused’s background, criminal history and ties, and the nature and seriousness of the offence.

How do I vary my Bail conditions?

If you have been granted bail, it may be subject to certain conditions which could specify where you must reside and with whom you may or may not communicate.

If you have a valid need to change a bail condition – for example, if you need to change your address – you will need to apply for a bail variation. If you fail to do so, you may be charged with a breach of bail which may result in your bail being revoked.

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