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Bail is a legal agreement between the accused and the court that allows the accused to be released from custody before their case is finalised. The purpose of bail is to ensure that the accused appears in court and does not commit any further offences while their case is on foot. Bail can be granted with or without conditions, such as reporting to a police station or surrendering a passport.

In NSW, bail applications can be made in the Local Court, District Court, or Supreme Court, depending on the severity of the offence. When making a bail application, the accused must demonstrate to the court that they meet the criteria for bail and that there are no ‘unacceptable risks’ if they are released on bail.

The law surrounding bail in NSW is outlined in the Bail Act 2013 (NSW).

To be granted bail, the court must be satisfied that there are no ‘unacceptable risks’ if you are to be granted bail.

The unacceptable risks are outlined in Section 19(2) of the Bail Act, which are that if you are released from custody, you will:

1. Fail to appear at court whenever required;
2. Commit a serious offence;
3. Endanger the safety of victims, individuals or the community; or
4. Interfere with witnesses or evidence.

However, if the court believes that there is a high risk of one of the above bail concerns, you may still be granted bail under certain conditions.

For example, if the court believes that there is an unacceptable risk (for example, where you have a history of not showing up to court so there is a high risk of you failing to appear at your next court date), but believes that this risk can be alleviated by imposing certain bail conditions such as requiring you to report to the police station on a daily basis or having someone agree to forfeit a large sum of money in the event you do not appear at your court dates, then the court may grant you bail under the condition that you agree to be subject to these bail conditions.

The show cause test is a criterion that must be satisfied by an accused person in order to be granted bail for certain types of offences in NSW.

The test requires the accused person to demonstrate why their detention ‘is not justified’, given the nature of the offence and the circumstances of the case. This means that the accused person must provide compelling reasons as to why they should be released on bail, despite the seriousness of the offence.

Factors that may be considered when determining whether the accused person has met the show cause test include their ties to the community, their criminal history, the strength of the evidence against them, and the risk of them reoffending or failing to appear in court. The court recognises that bail conditions can be an effective way of balancing the need to protect the community with the right to liberty of the accused person.

In the case of DPP v Mawad [2015] NSWCCA 227, the court established that an accused person does not need to demonstrate exceptional circumstances to satisfy the show cause test. The court clarified that the test is not a higher threshold than the general bail criteria, but rather a different way of approaching the bail decision for certain types of offences. This means that an accused person can be granted bail if they can show cause why their detention is not justified, even if their circumstances are not exceptional.

In the case of R v Melmeth [2015] NSWSC 1762, the court established that a combination of factors may be used to show cause as to why an accused person’s detention is not justified, including stringent bail conditions. The court held that bail conditions can be imposed as a way of mitigating the risks associated with releasing an accused person on bail, and that these conditions can be taken into account when determining whether the accused person has shown cause.

The show cause test is a high threshold and can be difficult to meet, particularly for more serious offences. It is important to speak with an experienced criminal lawyer to determine the best approach to presenting your case for consideration of bail.

If a bail application is refused, there are 2 options available to you if you wish to attempt to be granted bail again.

The first option is that you may try to go for bail again in the current court which refused you bail. That is, if the Local Court has refused you bail, you may attempt to apply to the Local Court for bail again. However, you must demonstrate that there has been a ‘change in circumstances’ since the original bail application, that material information was not presented during your initial bail application or that there was a mistake of law or fact in the original decision.

The second option is that you may appeal to a higher court and attempt to be granted bail again. For example, where a Local Court has refused to grant you bail, you may now lodge a bail application with the Supreme Court. Unlike the first option, you do not need to show a change in circumstances to be allowed to make a bail application to a higher court after you have been refused in a lower court.

Bail conditions can also be reviewed and varied by the court. For example, the accused may apply to have their reporting conditions reduced or removed.