Bail in NSW: Being refused bail means staying in custody until your case is resolved, potentially for weeks, months, or longer. For anyone charged with a criminal offence in NSW, understanding how the bail system works, what courts are looking for, and how to put your best case forward is not just useful. It can determine whether you go home.
This guide explains the current NSW bail framework under the , how decisions are made, what has changed for domestic violence offences, and what you can do to strengthen a bail application.
Bail in NSW: Bail Act 2013 (NSW)
NSW bail law is governed by the , which replaced the former Bail Act 1978 and fundamentally restructured how bail decisions are made. The Act sets out two main questions a court must work through before granting or refusing bail.
Step One: Is This a Show Cause Offence?
For most offences, bail is the default starting position, the prosecution bears the burden of establishing that it should be refused.
However, for a category of serious offences, the accused must first show cause why their detention is not justified. This is a higher threshold. If the accused cannot satisfy the show cause requirement, bail must be refused without the court even reaching the second stage.
Show cause offences under section 16A of the Bail Act 2013 include:
- Murder and manslaughter
- Serious sexual offences (including those involving children)
- Serious drug offences (commercial quantity or above)
- Armed robbery and aggravated robbery
- Terrorism offences
- Serious firearms offences
- Domestic violence offences where the accused has a prior DV conviction or is subject to an existing AVO
“Showing cause” typically requires demonstrating through evidence why the public interest in liberty outweighs the particular concerns a court would have for an offence of this seriousness. Strong community ties, employment, no prior history, and supported accommodation are common components of a show cause argument.
Step Two: The Unacceptable Risk Test
Once any show cause requirement is satisfied (or if the offence is not a show cause offence), the court applies the unacceptable risk test under section 17 of the Bail Act 2013.
Bail must be refused if there is an unacceptable risk that the accused would:
- Fail to appear at court for the offence
- Commit a serious offence while on bail
- Endanger the safety of victims, individuals, or the community
- Interfere with witnesses or evidence
The court does not need to find all four risks, one is sufficient.
What Factors Does the Court Consider?
Under section 18 of the Bail Act 2013, the court must weigh up a range of factors, including:
- The nature and seriousness of the offence
- The strength of the prosecution’s case
- The accused’s criminal history and any prior failures to appear
- Any history of violence, particularly towards alleged victims or family members
- The accused’s personal circumstances: employment, family ties, accommodation, community connections
- Whether the accused is subject to an existing apprehended violence order (AVO)
- The likely sentence if found guilty
- Whether the accused has any special vulnerability (age, mental health, cognitive impairment)
- The length of time likely to be spent on remand if bail is refused
The court must consider bail conditions as an alternative to outright refusal. If conditions can adequately address the risk identified, the court should impose those conditions rather than refuse bail altogether.
Bail in NSW Conditions
Under section 20A of the Bail Act 2013, conditions imposed must be:
- Reasonably necessary to address a specific bail concern
- No more onerous than necessary
- Proportionate to the seriousness of the offence
- Capable of being complied with
Common conditions include:
- Reporting to police at set intervals
- Residing at a specified address
- Surrendering passport and travel documents
- Not approaching or contacting the alleged victim
- Attending a residential rehabilitation programme
- Electronic monitoring (for serious offences)
- Agreeing to a surety (a person who agrees to forfeit a sum of money if the accused fails to appear)
Domestic Violence Bail in NSW: A More Restrictive Regime
NSW has progressively tightened bail laws for domestic violence offences over recent years. If you are charged with a DV offence, the bail framework operates differently.
Key features of the current DV bail regime:
Show cause applies to repeat DV offenders. Under section 16A, an accused with a prior DV conviction or who is already subject to an AVO must show cause why their detention is not justified. This reverses the default presumption in favour of bail.
Bail assessment required in all DV matters. Courts must consider specific DV safety concerns before granting bail, including the history of violence, the risk to the alleged victim, and whether any AVO is in place.
Domestic Violence Safety Action Plans. In most DV bail matters, a safety plan must be developed, outlining steps to keep the alleged victim safe if bail is granted.
Contact conditions are standard. Non-contact and no-approach conditions are routinely imposed where an AVO is in place or applied for.
For more detail on the DV-specific bail framework, see our article on .
Which Court Do You Apply To For Bail in NSW?
The court you apply to depends on where your matter is being dealt with and whether bail has previously been refused.
| Court | When to apply |
|---|---|
| Local Court | First application, for most offences |
| District Court | Where the matter is before the District Court, or after a Local Court refusal |
| Supreme Court | After refusal in the court dealing with the matter, or for complex/serious matters; murder and certain terrorism matters |
If bail has been refused at one level, you generally need either a change in circumstances or fresh evidence to support a further application in the same court. Applications to a higher court can be made after a refusal below.
How to Strengthen A Bail Application
A bail application is not a formality. Courts make decisions quickly, and the quality of what is put before the court matters. A well-prepared application typically includes:
A letter from an employer or prospective employer: confirming employment or an offer of employment if bail is granted.
Evidence of accommodation: a letter from a family member or partner offering stable, supervised accommodation at a specific address.
Support letters: from family, community members, or a support worker who can speak to the accused’s character and ties to the community.
Rehabilitation evidence: if drug or alcohol use is a factor, evidence of referral to or enrolment in a programme strengthens the application.
Proposed conditions: proactively proposing conditions that address the court’s specific concerns (for example, offering to report daily, or surrender a passport) can shift the analysis from “refuse bail” to “grant with conditions.”
A surety: a responsible person who is willing to appear in court and guarantee the accused’s appearance.
The best outcomes come from having an experienced criminal defence lawyer , who can identify what specific concerns a court is likely to have and address them directly, before the court raises them.
What Happens If Bail Is Refused?
If bail is refused, you will remain in custody until your next court date. You can apply again if there is a material change in circumstances, for example, accommodation becomes available, an employer offers a position, or rehabilitation placement is arranged.
If bail is refused in the Local Court, you can apply to a higher court. If bail is refused by the Supreme Court, you can apply to the Court of Appeal.
You can also apply under section 74 of the Bail Act 2013 to vary existing bail conditions if they become impractical or need adjustment.
Frequently Asked Questions About Bail In NSW
Can police grant bail?
Yes. Police can grant bail at the station (known as “police bail”) for most offences. If police refuse bail, you will be held overnight and brought before a magistrate the next day.
What is a show cause offence?
A show cause offence is one where the accused bears the initial burden of demonstrating why their detention is not justified. For other offences, the prosecution bears the burden of establishing bail should be refused.
Can I get bail for a murder charge?
Yes, bail is available for murder, but it is a show cause offence, which means the accused must first demonstrate why detention is not justified. The Supreme Court handles bail for murder matters. It is granted rarely and usually requires compelling individual circumstances.
Does a prior criminal record affect my bail?
Yes, significantly. Courts consider criminal history, prior failures to appear, and prior DV convictions as part of the bail assessment. It does not automatically mean bail will be refused, but it requires the application to be carefully prepared.
Get Advice Before Your Bail Hearing
The time between arrest and your bail hearing is short. Having a lawyer present at that hearing, rather than appearing unrepresented, can make a material difference to the outcome.
O’Brien Criminal and Civil Solicitors are experienced NSW criminal defence lawyers. We are available for urgent bail matters and offer a free, confidential, no-obligation initial consultation.
Read more about before speaking to police.
To enquire online or call (02) 9261 4281.
This content is for general information purposes only and does not constitute legal advice. You should seek independent legal advice relevant to your specific circumstances.
Peter O'Brien is the Principal Solicitor of O'Brien Criminal & Civil Solicitors and Australia's leading expert in intentional torts litigation, with over 25 years of experience securing landmark victories in malicious prosecution and unlawful imprisonment cases. Author of Intentional Tort Litigation in Australia and recipient of the Law Council of Australia President's Medal, Peter has achieved record-breaking compensation for clients and is widely recognised for his unwavering commitment to access to justice.
