Have you been charged with a serious offence and the police have decided that they will refuse bail and as a result incarcerate you?

Bail is a convoluted and complex area of law governed by the Bail Act 2013 (NSW).

There are several different tests that relate to bail, including:

  1. The Court determining if the matter is a Show Cause offence? (If the matter is show cause you must show cause as to why detention is not justified); and/or
  2. If the matter is not a show cause matter OR if detention is not justified the Court moves to assesses any bail considerations.

Show Cause

The law has identified certain offences which are considered show cause offences. In order to be successful in bail for show cause offence you must demonstrate that:

  1. Detention is not justified; and
  2. You are an unacceptable risk in being in the community.

The Court of Appeal in DPP v Tikomaimaleya [2015] NSWCA 83 stated that the two tests ought not be conflated and that the determination of the show cause assessment did not inevitably inform the unacceptable risk assessment. However the Court of Appeal did note that in many cases the matters relevant to the first test would also be relevant to the second.

What are Bail considerations

There are four main Bail considerations as follows; (A Bail consideration can be either a Bail Concern or an Unacceptable Risk).

  1. Will the accused fail to appear at Court?
  2. Will the accused commit a serious offence?
  3. Will release endanger the safety of the victim, individuals or the community?
  4. Will the accused interfere with witnesses or evidence?


  • If the outcome is there is no Bail Concern or a Bail concern that can be mitigated with conditions, Bail will be granted
  • If the Bail consideration is assessed by the Court to be an Unacceptable Risk bail will be refused

The complex tests on Bail

The Bail tests are intermingled and complex and the one that is applicable to your case depends on the type and seriousness of charges that you are facing. Bail may be more difficult to obtain for serious drug offences such as importations, violent offences including sexual offences, murder and robbery. You may also find it more difficult to be granted bail if you already have certain offences on your criminal record, are considered a “repeat offender”, or were already on a bond or on bail at the time of the alleged offence.


Common bail conditions include:

  • Curfew;
  • Periodic reporting to the police station;
  • Residing at a specified address;
  • Offering a Bail Surety (promise to pay or forfeiture a certain amount of money);
  • Not being able to leave the state and/or country;
  • Not being able to associate with witnesses or co-accused;
  • Comply with AVO;
  • Engage in rehabilitation;
  • Offering a Character acknowledgement;
  • Surrender Passport;
  • Drug and Alcohol Testing;
  • Not enter certain place or places; and
  • Not enter the driver’s seat of a vehicle.


Bail as a conditional freedom

When bail is granted, the Accused is released from custody, but their release may be subject to conditions.

Denial of bail

If bail is refused, the Accused is remanded in custody. Remanding a defendant in custody should also be regarded as a last resort.


When bail can be granted

Bail can be granted at any stage of the criminal process from the point of arrest through to the trial, sentence and final appeal.


Why Choose us?

Our principal Lawyer, Mr Michael Moussa has been successful in obtaining bail for some Sydney’s most high profile cases. If you or someone you know needs assistance with a Bail related matter we will ensure that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.



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