At a Glance
- Bail is the conditional release of a person facing criminal charges.
- Each Australian state and territory has its own specific legislation and "tests" for granting bail.
- Courts primarily assess the risk of the accused failing to appear or endangering the community.
- "Show Cause" requirements apply to certain serious offences, making bail more difficult to obtain.
- Conditions such as reporting to police, residential requirements, and sureties are common.
The Foundation of Bail in Australia
In the Australian legal system, the fundamental starting point is the presumption of innocence. However, this is balanced against the "unacceptable risk" test. When a court considers a bail application, it evaluates whether the accused person poses a risk that cannot be mitigated by specific conditions.
The procedures vary slightly between jurisdictions, but the core objective remains consistent: ensuring the accused appears in court while protecting the public and any victims. In New South Wales, the Bail Act 2013 (NSW) moved away from old presumptions to a risk-based model, whereas in Victoria, the Bail Act 1977 (VIC) has seen significant tightening in recent years following high-profile incidents.
The Two-Step Test: Show Cause and Unacceptable Risk (Using NSW as an example)
For many standard offences, the court proceeds directly to the "unacceptable risk" assessment. However, for more serious "Show Cause" offences, such as those involving commercial quantities of drugs, certain firearms offences, or serious violence, the burden shifts to the accused.
1. The Show Cause Requirement
If an offence is a "show cause" offence, the applicant must first convince the court why their detention is not justified. This is a high threshold. Factors that might help "show cause" include a weak prosecution case, significant health issues, or excessive delays in the matter reaching trial.
2. The Unacceptable Risk Test
If the applicant successfully shows cause, or if the offence does not require it, the court then assesses four specific risks:
- Failing to appear at court.
- Committing a serious offence while on bail.
- Endangering the safety of victims or the community.
- Interfering with witnesses or evidence.
If the court identifies an unacceptable risk that cannot be managed by conditions, bail must be refused.
Common Bail Conditions
Courts rarely grant "unconditional bail." Instead, they impose a suite of restrictions designed to manage the identified risks:
- Reporting: Requiring the individual to visit a local police station on specific days.
- Residency: Mandating that the person lives at a specific address and adheres to a curfew.
- Financial Security (Surety): A person (often a family member) agrees to forfeit a sum of money to the court if the accused fails to appear.
- Non-Association: Orders preventing the accused from contacting co-accused or victims.
- Travel Restrictions: Surrendering a passport and staying away from international departure points.
Practical Case Example
In R v Tikomaimaleya [2015], the New South Wales Court of Appeal provided important clarification on the structure of bail decision-making under the Bail Act 2013 (NSW). The case emphasised that, where an offence attracts a show cause requirement, the court must first determine whether the accused has demonstrated why continued detention is not justified. Only if that threshold is met does the court proceed to assess whether there is an unacceptable risk.
The Court of Appeal made clear that a bail decision is not to be determined abstractly by reference to the seriousness of the charge alone. Rather, the court must apply the statutory framework and examine whether any identified risks can be addressed through the imposition of appropriate and targeted bail conditions. The decision underscores the risk-based approach adopted by the Bail Act 2013 (NSW) and confirms that courts must adhere strictly to the prescribed statutory steps when determining bail.
The case illustrates that, even in the context of serious allegations, the critical issue in bail determination is whether the statutory tests have been correctly applied and whether any relevant risks can be effectively managed by conditions, rather than the automatic exclusion of bail based solely on the nature of the charge.
A Lawyer’s Perspective: The Importance of the First Application
In many jurisdictions, such as NSW, you generally only get one "bite at the cherry." In New South Wales, where a court has already refused bail, any subsequent application for release to the same court is restricted by Bail Act 2013 (NSW) s 74. Generally, the applicant must demonstrate the existence of new material information or a relevant change in circumstances in order to meet the statutory threshold for a further application.
This makes the initial application the most vital part of the legal process. Rushing into a bail application without a solid residence plan, a prepared surety, or medical evidence can lead to a refusal that is very difficult to overturn later. We often advise clients to wait a few days in custody to gather the necessary evidence for a strong application rather than rushing in unprepared.
Key Takeaways
- Bail is not a right, but a conditional liberty based on risk management.
- Serious offences often require the accused to "show cause" before bail is considered.
- Conditions must be relevant and proportionate to the risks identified by the court.
- Failed applications are difficult to appeal without significant changes in circumstances.
Frequently Asked Questions
What is a surety?
A surety is a person who guarantees the court that the accused will follow bail rules. They may have to prove they have assets or cash that will be forfeited if the accused disappears.
Can I apply for bail again if I am refused?
Only if there is a significant change in circumstances, such as a major delay in the trial date or new evidence that weakens the prosecution's case.
What happens if I breach my bail?
Breaching bail is a serious matter. Police can arrest you immediately, and it creates a "fail to appear" record that makes getting bail in the future much harder.
Does the victim have a say in the bail process?
The prosecutor often presents the victim's concerns to the court, particularly regarding safety and non-contact orders, which the Magistrate or Judge must consider.
How long does a bail application take?
A standard application in a Local or Magistrates Court usually takes between 30 minutes and two hours, depending on the complexity of the arguments and the volume of evidence.
How We Can Help
Navigating the bail system requires a calm head and a strategic approach. We assist clients by:
- Preparing robust "Show Cause" arguments for serious charges:
- Liaising with family members to arrange acceptable sureties and accommodation:
- Drafting comprehensive bail conditions to address court concerns:
- Representing clients in Supreme Court bail reviews:
- Advising on the likelihood of success before an application is filed.
Our goal is to ensure that the court sees the individual behind the charges and provides a fair path toward release.
