How Does Bail Work?

jail bars

The first bail application is very important. The accused must convince the Court to grant bail. The accused has to supply sufficient evidence to determine that continued detention by the Court is not justified. Being familiar with the Bail Act 2013 NSW and the bail process when charged with a crime is important. 

The Bail Act

The Bail Act 2013 NSW is the main legislation governing and allowing the Court the discretion to grant bail to offenders who are accused of serious crimes. The Bail Act 2013 can be complex and difficult for someone without a legal background to understand. 

An accused person must pass the bail act “show cause” test and the Bail Act 2013 “unacceptable risk” test to convince the Court to grant bail in a bail application. The accused person has to address the Court on Section 18 Bail Act factors to pass both tests to get bail. The Court considers these factors when assessing the concerns to determine whether continued detention is unjustified and whether there is an acceptable risk. 

The Court will only grant bail if it determines that continued detention is not justified. After assessing all the bail concerns, the Court will then determine that there is no unacceptable risk. This happens by considering the s18 factors.


What is Bail?

A person charged with a criminal offence may be remanded in custody or granted bail. Bail is the conditional release of a person accused of a crime back into the community before the case against the accused has been finalised. A person may be released from custody and granted bail by the police or a judge or magistrate on certain conditions. The accused released on bail gives an undertaking to return to Court on a specified Court date.

Some of the primary considerations regarding whether to grant a person bail are:

  • To ensure the accused attends Court to answer the charges
  • To protect the community
  • To protect the alleged victims

The laws relating to bail are complex and constantly changing. It is complicated to obtain bail and the accused often needs a specific argument from an experienced defence lawyer. The defence lawyer has to convince the Court an accused person:

  • Is not a flight risk,
  • a risk to the community,
  • will not commit any other offences while on bail,
  • will not interfere with witnesses and
  • will return to Court for their case to be heard

If a person is not granted bail by the police or the Court, they will remain in prison until the criminal case against them concludes. This could mean a person found not guilty, might still have to spend time in prison. There is no compensation available for a person who spends time in prison unnecessarily. Therefore, getting bail is extremely important for a person accused of a crime. 

A bail application in NSW can only be made once to the same Court. It is important to consider whether there are grounds to make a further application to the Local Court when a bail application was refused. The wait time for an application can usually be made to the Local Court within two days’ notice, whereas the wait time for an application to the Supreme Court is 6-8 weeks. 

A person can only ask for bail under Section 74 of the Bail Act if:

  • The accused were not represented by a lawyer at the first bail application
  • The accused have new information to tell the Court about why they should get bail
  • There has been a change of circumstances since the previous application
  • The accused is under 18 and the bail application was made at the first appearance for the offence

When the Local Court refuses bail, the accused can apply for bail a second time in the Supreme Court. New bail laws were introduced on 27 June 2022. Section 22B Bail Act stipulates the accused should not be granted bail if a guilty plea was introduced. The new bail law also specifies that bail will not be granted if the accused are convicted for an offence where the Court is satisfied that the accused will receive a full-time imprisonment sentence unless special or exceptional circumstances are introduced.


Who needs to get Bail?

An accused person will only require bail if the police begin criminal proceedings against them and they are arrested. Not every person charged with a criminal offence will need to be given bail. It is not always necessary to arrest a person. A person can be charged for a crime, but not necessarily arrested for the crime. The police can only arrest a person in a limited number of circumstances set out in Section 99 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Police can serve court documents on the accused as opposed to arresting the person. 

The “Bail” Authorities

The accused can be granted bail by the following bail authorities”:

  • The police
  • The local Court
  • Supreme Court
  • Court of Criminal Appeal

Bail Applications in NSW

It is important to appoint an experienced bail lawyer to prepare the bail application. An experienced bail lawyer will improve the chances of the accused getting bail in Court. The bail application should outline the main reasons why the continued detention of the accused is not justified. 

 “Show cause” offences

The “show cause” is the first test required when the person charged with a serious offence is seeking bail. Serious “show cause” offences, outlined in Section 16B of the Bail Act 2013, include offences that are punishable by imprisonment for life. These offences are murder, manslaughter, offences involving sex with a child under 16, and serious personal violence offences. The Court will go straight to considering the “unacceptable risk” test if the offence is not a “show cause” offence. 

The person has to “show cause” why their detention is not justified. The Court will refuse bail if the show cause test has not been met. In addition, the Court will consider the second “unacceptable risk” test if the show cause test was met.  

What is “Unacceptable Risk”?

Section 19 of the Bail Act stipulates all bail applications involve a consideration of the “unacceptable risk” test. The Court must consider these questions when considering bail applications:  Are there any bail concerns, and if so, are there any bail conditions that may mitigate those concerns?

Bail must be refused if there is an unacceptable risk or bail concerns that the person would:

  • fail to appear in Court for the offence
  • commit another serious offence while still on bail
  • endanger the community in general
  • endanger the safety of the victim
  • interfere with evidence and/or witnesses

The following factors set out Under Section 18 of the Bail Act must be assessed when deciding on bail applications. The Section 18 factors are:

  • Background of the accused i.e. criminal history, circumstances, and community ties
  • What is the nature of the offence and how serious is the offence
  • The strength of the prosecution case
  • history of violence
  • a serious offence committed while on bail
  • Has the accused been compliant with court orders in the past (if applicable)
  • Whether the accused has criminal associations
  • Time spent in custody if bail is not granted
  • Whether the accused has any special vulnerability that would make being in prison more onerous for them
  • How does the accused behave with the victim or the families of the victim

Bail will not be granted if the Court considers the unacceptable risk test has not been met. Therefore, the accused will remain in custody on remand until the case is finalised. This can take several months or years depending on the specific case. The accused will need to convince the Court that there are no unacceptable risks when assessing the bail concerns. These bail concerns can be mitigated by imposing strict bail conditions. 

Bail will be granted if the Court considers the unacceptable risk has been met. The accused will be released immediately with bail conditions and has to be present at court dates.

Bail Conditions

According to Section 20A bail conditions are only to be imposed if the Court is satisfied that they are:

  • Reasonably necessary
  • Judicious and is the conditions in line with the offence
  • Appropriate to the concern
  • No more onerous than necessary
  • Reasonably practical for the accused to comply with
  • Likely to be complied with

The Judge or the Magistrate can grant bail with or without bail conditions. The bail conditions will remain in place until the case is concluded or if the conditions get varied in Court. There are various bail conditions in NSW a court can impose. These conditions are:

  • Reporting conditions
  • Residential conditions
  • Curfew conditions
  • Surrender passport to authorities
  • Security conditions
  • Cannot associate with certain specified people
  • Drug and alcohol tests
  • Restriction on a geographical area
  • Restricted access to international departure points
  • Electronic monitoring conditions

Under the new bail laws introduced on 27 June, 2022 in NSW, any electronic monitoring bail condition imposed must comply with the minimum standards prescribed by the regulations under Section 30A Bail Act. 

The accused will have to sign the bail undertaking to comply with the bail conditions before the accused can be released from custody. 

Breach of Bail Conditions

A person will be arrested by the police and taken into custody if they breach any of the bail conditions without a reasonable excuse. The Court will revoke bail, and the accused will not be granted bail again.

If the accused fail to appear in Court, the Judge or Magistrate can:

  • Issue a “bench warrant” for arrest
  • Order any amounts paid by the accused or “surety” are forfeited

The Court will notify the accused of the orders by post. The accused have 28 days to object to the order. The Court can revoke the order, vary the order or confirm the order. 

How much is Bail in NSW?

The amount of bail granted by the Court varies and this depends on several different factors. There is no set amount for bail charges. A bail lawyer will be able to give an accused an estimate based on the case and circumstances. The amount for bail or the value of the property is based on the following: 

  • The more serious the offence the higher the amount of bail will probably be
  • Financial circumstances of the accused
  • If the accused are likely to abide by the terms and conditions of the bail
  • If the accused are likely to appear before the Court on specified dates

The Bail Act 2013 does not mention the words “bail bond”. Section 86 of the Bail Act 2013 makes it an offence for a person to agree to indemnify another person against any forfeiture of the surety agreement. The Bail Act prohibits bail bond type relationships and the penalty can be a maximum of three years in prison or a $3,300 fine. 

Will Bail be Paid Back?

Bail money will be refunded to the accused or the “surety” once the matter has been finalised and all the bail conditions were adhered to. The procedures for the payout may vary slightly between the different court registries. 

The accused will have to obtain a Notice of Outcome from the Court to confirm the matter is finalised. The Notice of Outcome and a copy of the receipt of the initial bail deposit needs to be handed in at the Court where the bail was lodged. The accused or “surety” will have to present identification and a valid signature to complete the process. The bail will either be paid by cheque or by Electronic Transfer. 

The process for claiming back property or title deeds takes a little longer, and your defence lawyer will advise the accused on the matter.

Do you have to apply for bail? It is important to contact an experienced law firm to assist you with the process to ensure your success. 


  • Mohammad Khan | Criminal Defence Lawyer

    Mohammad Khan is the Principal Solicitor of Lyons Law Group. After graduating with a Bachelor of Aviation from the University of New South Wales, Mohammad took a keen interest in the law. He began training in criminal law under the tutelage of Australia’s leading criminal lawyer Adam Houda and studied law at the University of Sydney.