M2 - Learner Manual

5.3. The legal tests for release applications (NSW)

When a court hears a release application, there are two questions it must ask:

The first issue which needs to be determined is whether or not the offence is a “show cause offence”. Bail must be refused for a show cause offence unless the accused person shows cause why his or her detention is not justified.[1] You can work out whether the offence is a “show cause” offence by referring to section 16B of the Bail Act: https://www.legislation.nsw.gov.au/#/view/act/2013/26/part3/div1a/sec16b

If the person applying for bail does show cause (or if the offence is not a show cause offence), the court must then ask whether the person presents an unacceptable risk. The court is to refuse bail if it is satisfied that there is an unacceptable risk that the accused person, if released from custody will[2]: 

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

If there are no unacceptable risks the court must grant bail, release the person without bail, or dispense with bail.

When assessing whether a bail concern exists, the court is to consider the factors set out in section 18 of the Bail Act 2013 (NSW) which include:

• the accused person’s background, including criminal history, 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
• 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 court orders
• whether the accused person has any criminal associations
• the length of time the accused person is likely to spend in custody if bail is refused
• the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence
• if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed
• if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success
• any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment
• the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice
• the need for the accused person to be free for any other lawful reason
• the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence
• in the case of a serious offence, the views of any victim of the offence or any family member of a victim, to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community
• the bail conditions that could reasonably be imposed to address any bail concerns.