Bail Application or Release Application
At common law, the presumption was in favour of bail. That is, an accused was to be granted bail unless the prosecution could show that in the event bail was granted the accused would likely, amongst other things:
- Not answer their bail by appearing before the court for their trial.
- Commit further offences.
- Interfere with witnesses.
Those accused of serious, “show cause”, offences must now show cause, or provide reasons, as to why they should be granted bail given the seriousness of the offence with which they are charged.
The show cause requirement will be satisfied where an accused can show facts and circumstances which justify a grant of bail notwithstanding the seriousness of the offence with which they are charged.
Facts and circumstances which may satisfy the show cause requirement are numerous and varied. In R v Xi [2015] NSWSC 1575 (26 October 2015), for example, an accused charged with a number of serious offences, including manufacture large commercial quantity of methamphetamine, showed cause in the fact that he was the only person who could care for his severely mentally handicapped child.
Once the show cause requirement is satisfied the accused, in effect, has bail unless the crown can show that the accused is an ‘unacceptable risk’. This is determined by address of the ‘bail concerns’ set out in section 17 of the Bail Act 2013 (NSW) (‘section 17’), namely, whether the accused, if granted bail, will likely:
- Fail to appear at any proceedings for the offence;
- Commit a serious offence;
- Endanger the safety of victims, individuals or the community; or
- Interfere with witnesses or evidence.
Evaluation of the section 17 bail concerns is determined by address of the factors set out in section 18 of the Bail Act 2013 (NSW), including:
- The accused’s 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 has a history of violence.
- Whether the accused has previously committed a serious offence while on bail.
- Whether the accused has behaved themselves in respect of prior bail conditions, apprehended violence orders, parole orders or good behaviour bonds.
- Whether the accused person has any criminal associations.
Bail applications are to be made to the Local Court of New South Wales at first instance. In the event bail is refused in the Local Court of New South Wales, an application can be made to the Supreme Court of New South Wales, in particular circumstances.