Being Arrested Doesn’t Mean You Have to Stay In Custody
Being arrested is frightening. You may be worried about your job, your family, and the prospect of spending days or weeks in police custody waiting for a court date. The first question on most people’s minds is: Can I apply for bail?
Bail may be available for many offences, including some serious charges, but the outcome depends heavily on the nature of the offence and your circumstances. The outcome of a bail hearing depends on the specific risks the court considers and whether those risks can be managed through conditions.
With the right evidence, a credible bail plan, and proper legal representation, many people facing a bail application can achieve release if the right evidence and conditions are put forward.
This fact sheet explains the difference between police bail and court bail, the legal test courts apply, what conditions can be imposed, and what to do if bail is refused.
Key Takeaways
- Bail in NSW is governed by the Bail Act 2013 (NSW). The central question is whether releasing you creates an unacceptable risk.
- Police can grant bail at the station without a court hearing. If police refuse bail, you have the right to a bail hearing before a magistrate.
- For certain serious offences, you must “show cause” why your detention is not justified; the burden shifts to the accused to show why detention is not justified, and the court then applies the unacceptable-risk test to decide whether bail should be granted.
- Bail conditions are almost always imposed if bail is granted. Breaching a condition is a criminal offence.
- If bail is refused, you may be able to make a further application in the District Court or Supreme Court, usually with fresh evidence or changed circumstances.
- Being legally represented at a bail hearing significantly improves your chances of release.
- O’Brien Criminal & Civil Solicitors are experienced in bail hearings across NSW and available for urgent advice.
At a Glance: Bail Options After Arrest
| Police Bail | Court Bail | |
| Who decides | Police officer | Magistrate |
| Where | Police station or at point of arrest | Local Court |
| When available | During or shortly after arrest | If police bail refused or not granted |
| Key advantage | No court appearance needed, potentially released within hours | Full opportunity to present evidence and arguments |
| Typical conditions | Reporting, curfew, no contact orders | Surety, cash security, stricter conditions as needed |
Police Bail
Under the Bail Act 2013 (NSW), police have the power to grant bail with or without conditions at the time of arrest or at the station, without any court appearance. Police bail can take the form of street bail (released immediately at the point of arrest with a bail acknowledgement), bail at the station (released after being taken into police custody), or bail by arrangement (negotiated bail with conditions to be met before release).
If police grant bail, you will receive a bail acknowledgement setting out any conditions and your next court appearance. If police refuse bail, you must be brought before a magistrate as soon as practicable for a court bail hearing.
Court Bail
If police refuse bail or you are not granted bail at the station, you have the right to a bail hearing in the Local Court. This is your opportunity to present evidence and argument for why you should be released.
At a court bail hearing, both you, through your legal representative, and the police can make submissions. The magistrate will apply the legal test under the Bail Act 2013, consider any conditions that could manage the identified risks, and make a bail decision on whether to grant or refuse bail.
The Legal Test: What Courts and Police Consider
Both police and courts apply the same legal framework under the Bail Act 2013 (NSW). The central question is whether granting bail creates an unacceptable risk.
Bail must be refused if there is an unacceptable risk that you would:
- Fail to attend court as required
- Commit a serious offence while on bail
- Interfere with witnesses or evidence
- Endanger the safety of the community or a particular person
The court must also consider whether bail conditions could reduce those risks to an acceptable level. If appropriate conditions can be imposed, bail should be granted.
What Factors Are Considered?
When assessing unacceptable risk, courts and police take into account the accused’s criminal history, particularly prior convictions for similar offences or breaches of bail, your community ties including employment, family, housing, and length of residence in New South Wales, the seriousness of the charges, the strength of the prosecution case, your personal circumstances including age, health, mental health, and substance use, and the strength of any bail plan including support from family, an employer, or the community.
The court also considers whether you may be a flight risk, that is, whether there is a real possibility you may not return to face the criminal proceedings.
A well-prepared bail plan, with letters from an employer, offers of surety from a responsible family member, and evidence of stable housing, can make a significant difference to the outcome.
Show Cause Offences: When the Burden Shifts
For certain serious indictable offences, the law places a higher burden on the accused person seeking bail. Rather than the prosecution having to prove you should be detained, you must “show cause” why your detention is not justified.
Show cause offences typically include serious violence offences, sexual assault, drug trafficking, break and enter, robbery, causing death, and certain weapons offences, among others.
If you are charged with a show cause offence, the court will generally consider detention appropriate unless you can demonstrate compelling reasons for release. This makes legal representation at the hearing particularly important; the submissions and evidence presented on your behalf must actively address why detention is not justified.
Bail Conditions
If bail is granted, conditions are almost always imposed. These are designed to manage the risks identified and to ensure compliance with court orders.
Common bail conditions include reporting to police at a nearest police station at scheduled intervals (weekly or fortnightly), curfews requiring you to remain at a specified address between set hours, no contact orders prohibiting direct or indirect contact with alleged victims, witnesses, or co-accused, residence requirements, surety arrangements where a responsible person agrees to supervise you and may forfeit bail money if conditions are breached, bail security including cash security where you deposit money or deposit cash with the court registry, drug or alcohol testing, attendance at counselling or treatment programs, and weapons prohibitions.
Conditions are tailored to the specific risks identified in your case. If a particular condition is unworkable for you. For example, if a curfew conflicts with shift work, your criminal lawyer can propose alternatives that still address the court’s concerns.
Breaching a bail condition is a serious matter. It can result in immediate arrest, being remanded in custody, and additional criminal charges. Always comply with conditions, and if circumstances change that make compliance difficult, speak to a lawyer promptly about applying for a variation.
Real-World Scenarios
Scenario 1: Police Bail with Conditions
A person is arrested late on a Friday night and taken to the station. Police assess the situation and grant bail with conditions: a curfew from 9 pm to 6 am, weekly reporting, and a no-contact order with the complainant. The person is released within a few hours. Their lawyer reviews the conditions before the first court date and identifies that the curfew conflicts with their work hours. An application to vary the conditions is made at the first appearance.
Scenario 2: Bail Hearing After Police Refusal
Police refuse bail for a person charged with a mid-range offence. They are brought before a Local Court magistrate the next morning. Their lawyer presents an employment letter, a character reference from their employer, a proposed surety from a family member, and evidence of stable long-term housing. The magistrate grants bail with conditions, including weekly reporting and a residence requirement.
Scenario 3: Show Cause Offence
A person is charged with a serious violent offence, which is a show cause offence under the Bail Act. The magistrate cannot simply apply the unacceptable risk test, the person must first show cause why their detention is not justified. Their lawyer presents evidence of strong family support, no prior history of violence, long-term employment, and a detailed bail plan. Bail is granted with strict conditions, including daily reporting and a curfew.
If Bail Is Refused
If a magistrate refuses bail, you are not without options. You can apply to the District Court or Supreme Court of NSW with fresh evidence or new arguments that address the specific concerns identified by the magistrate.
Fresh evidence might include an employment letter that was not available at the first hearing, additional offers of surety, evidence of changed accommodation arrangements, or medical or psychological evidence addressing risk concerns. Simply repeating the same arguments that were rejected at the first hearing is unlikely to succeed. The new application needs to address the court’s stated reasons for refusal.
Appeals and reviews in higher courts involve more complex procedures and require specialist legal representation.
Frequently Asked Questions
What is the difference between police bail and court bail?
Police bail is granted by police at the station or at arrest, without a court hearing. It is faster but offers fewer opportunities to make a formal case for release. Court bail is decided by a magistrate after a hearing where both sides make submissions. If police refuse bail, a court hearing is your next opportunity.
What are show cause offences?
Show cause offences are serious criminal charges where the law places the burden on the person seeking bail to demonstrate why their detention is not justified. They include serious violence offences, sexual assault, drug trafficking, break and enter, robbery, causing death, and weapons offences.
Can bail conditions be changed after they are imposed?
Yes. If circumstances change or conditions become unworkable, you can apply to the court to have them varied. This requires an application supported by evidence explaining why the variation is necessary. Speak to your lawyer if you are struggling to comply with a condition.
What if I can’t afford a surety or cash security?
A surety is not always required. A lawyer can propose alternative conditions that address the court’s concerns without requiring financial security. If cost is a barrier to legal representation, you may be eligible for assistance through Legal Aid NSW.
Does having a lawyer at a bail hearing actually make a difference?
Yes, having a lawyer significantly improves the quality of preparation and the chances of achieving release on appropriate conditions.
What to Do Right Now
If you have been arrested or are facing a bail hearing, time matters. Take these steps immediately:
- Do not make any statement to the police without first speaking to a lawyer.
- Contact a criminal defence lawyer as soon as possible, before your bail hearing if at all possible.
- Gather supporting material, employment details, family contact information, proposed residential address, and anyone who might act as a surety.
- Write down the details of your situation while they are fresh, including the charges, what was said to police, and your personal circumstances.
- If you cannot afford a lawyer, contact Legal Aid NSW to find out whether you are eligible for assistance.
How O’Brien Criminal & Civil Solicitors Can Help
O’Brien Criminal & Civil Solicitors are experienced in bail hearings across Local Courts, the District Court, and the Supreme Court throughout Sydney and NSW. We understand the urgency of bail matters and are available to provide prompt advice.
We can gather and present the evidence most likely to support your release, propose appropriate bail conditions that address the court’s concerns, arrange sureties, cross-examine police evidence, and make clear, persuasive submissions on the legal test. If bail is refused, we can advise on the prospects and process for applying in a higher court.
Call O’Brien Criminal & Civil Solicitors on 02 9261 4281 or enquire online for urgent advice. We are available to assist from the moment of arrest through to the resolution of your matter.
This fact sheet provides general legal information only and does not constitute legal advice. Every case is different. If you are facing a bail hearing, seek independent legal advice about your specific circumstances as soon as possible.
