Bail Applications in the Local Courts NSW

Poppy Morandin and Jimmy Singh.


A Melbourne man has flashed half of his bottom over video link in a court-room whilst trying to convince a Magistrate he was not involved in a series of ram-raids on luxury boutiques.

42-year-old, Ben Agostino appeared before Melbourne Magistrates Court over the weekend after being charged with 42 offences including burglary, attempted burglary and theft spanning from November 2020 to March 2021.

Police will allege that Mr Agostino stole clothing and handbags, including $108,483 from Bottega Veneta, $72,860 worth of handbags from Berluti as well as $17,177 worth of Ralph Lauren clothing.

$2,984 worth of clothing is also alleged to have been stolen from Taylors Lake Shopping Centre.

Furthermore, he is alleged to have attempted to reverse into a Burberry boutique and into the Chanel Store, however the car was unable to gain entry on both occasions.

“The accused attempted to reverse through the front glass doors of the Chanel Store however was unsuccessful due to two concrete pillars at the side of the entry point in a ram raid fashion,” the police prosecutor explained.

During a self-represented bail application, Agostino told the court: “I would never do in my life something like that – it’s just outrageous. Dumb.”

The police prosecutor Senior Constable Jeff Dart explained to the court that police had supposedly captured CCTV of the offences, that showed the accused.

However, Agostino contended that he had seen the CCTV stills, and that they showed a man with his back and part of his pants down.

“It wasn’t me, I have a tattoo there,” he told the court.

“Well, the police can investigate that aspect of it, I’m not sure whether they realise they’ve got a tattoo on your back,” Magistrate John Doherty replied.

“If I bend over now … I can do that now look,” Agostino continued.

He then turned his back to the screen, lifted his shirt, with his trousers sagging, showcasing half of his bottom and a tattoo on his back.

“I’ve got a tattoo there and the guy bends over there. Have a look at his back. He’s browner than me and doesn’t have a tattoo there,” he explained.

“It’s just not me – I shouldn’t be here today at all.”

Magistrate John Doherty ultimately refused the man bail, with Agostino to be remanded into custody until his next court date.

Bail applications in the Local Court require certain procedures and for specific tests to be satisfied by the defence.

Bail Applications in the Local Court

The defence should prepare proposed bail conditions to submit to the court.

These can include that an accused will live at a specific address, report to police at intervals such as weekly or daily, surrender their passport, or not associate with other people, among others.

Other materials to submit include defence documents such as affidavits, letters from surety (the individual who is putting up a sum or of money or other security), letter of consent from person who has agreed to allow the accused person to reside with them, and any other necessary materials in support of the person in getting bail, including a character acknowledgment reference.

The tests that must be satisfied by the defence in their application will depend on what offence the accused has been charged with.

If an accused is charged with a ‘show cause’ offence, the defence must show cause as to why their detention is not justified, pursuant to section 16A(1) of the Bail Act 2013 (NSW).

Pursuant to section 16B, ‘show cause’ offences include:

  • Any offence that carries life imprisonment.
  • Any serious indictable offence involving sexual intercourse with a person under the age of 16;
  • Any serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused has already been convicted of a serious personal violence offence.
  • Any serious indictable offence involving a weapon.
  • Any offence that involves the cultivation, supply, possession, manufacture, or production of a commercial quantity of a prohibited drug or plant.
  • Any offence that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation, or supply of a commercial quantity of a serious drug.
  • Any serious indictable offence committed by an accused who is on bail or parole.
  • Any indictable offence committed while accused is subject to a supervision order, or the offence of failing to comply with a supervision order.
  • Attempting to commit, assist, aide, abet, counsel, procure, solicit, be an accessory to, encourage, incite, or conspire to commit any of the above offences.
  • Any serious indictable offence committed whilst someone is subject to a warrant for their arrest.

Examples of factors that can be used to show detention is not justified include it being an accused persons’ first time in custody, the length of time they are likely to spend in custody pending trial, a will to enter residential rehabilitation, the likely outcome if an accused person were to be found guilty on the charges, and their need to be at liberty to prepare their defence, maintain employment or provide and care for their family.

These factors were outlined and affirmed in McAndrew v the Queen [2016] NSWCCA 58.

If the defence has shown cause, the court then moves to the ‘unacceptable risk’ test.

The unacceptable risk test involves considering whether, if released from custody, the accused person will:

  • fail to appear at any proceedings for the offence,
  • commit a serious offence,
  • endanger the safety of victims, individuals, or the community,
  • interfere with witnesses or evidence.

In assessing these concerns the court can have regard to a multitude of factors including the accused person’s background, criminal history, circumstances and community ties, the nature and seriousness of the offence, the strength of the prosecution case, whether the accused has not complied with bail or other court orders before and the need for the accused person to be free for lawful reasons.

If the court deems that any of these concerns are present, they may still grant bail, however they may impose conditions in order to mitigate risk.

In the case of an offence which is not one of the ‘show cause’ nature, only the ‘unacceptable risk’ test outlined above will be applicable.

If ac accused person has been refused bail by the local court, a second bail application in the local court cannot be made unless the court is satisfied there are a material change of circumstances, including new evidence.

However, if the Local Court refuses an accused person bail, they can apply straight to the Supreme Court for bail.

In NSW, a person refused bail by police over a Friday night or weekend will be given an opportunity to make a weekend Parramatta bail application.

About Criminal Defence Lawyers Australia

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