What are the Bail Laws in NSW?


It is reported that on 10 December 2018, 19-year-old Corey Milgate allegedly cut-off the power supply of the Lawrence Hargrave Drive Club by flicking the building’s electrical switch before attempting to enter the building.

The teenager is alleged to have stolen $580 from tills, tip jar and a Guide Dogs Australia money box that was full of donations.

Its reported that witnesses saw items on the foreshore of the premises, including the money box and tills.

Amongst the items found in the vicinity of the foreshore, police have also allegedly found 2 yellow gloves which, the prosecution will allege, has the teenager’s DNA on it.

Police argue that the CCTV footage has captured a person wearing a hooded jacket approach the premises at nearly 11:49pm. That the footage depicts this person wearing yellow gloves while attempting to get inside.

Reportedly, the staff from the premises discovered a broken glass door, cash and other items missing upon their return the following morning.

Police have said, that the teenager’s grandmother told them that a yellow pair of washing gloves were missing from the cupboard.

Milgate was arrested and charged for the offence of break and enter.

Whilst he denies the allegation, Milgate appeared at the Wollongong Local Court on Saturday 5 January 2019 where he was refused bail.

He has reported said to police, “Come back and see me later. I’ll get bail again, you’re wasting your time. I always get bail, I’ll be out in two hours.”

Interestingly, the teenager has already pleaded guilty to offences of break-ins at various buildings, including the Balgownie Mini-Mart, Post Office and Café Bulli.

He was on bail for those matters when arrested and charged for this.

What is the Law on Bail in NSW?

Bail is where a person charged with an offence is allowed release from custody, with or without conditions with requirement(s) to comply with certain conditions, including to attend court when required to do so.

The Law allows NSW Courts to grant bail to a person charged with an offence if each of the following two conditions are satisfied:

  1. The accused person applying for bail must show cause as to why it is unjustified to remain in custody during the proceedings; and
  2. If the first test is passed, bail will be granted if the court is convinced that any of the following risks can be sufficiently addressed (or alleviated) by the imposition of conditions considered fit in the circumstances:
  3. Failure to appear in court;
  4. Commit serious offences in the community;
  5. Endanger as to the safety of the victim(s) or community;
  6. Interference with witnesses or evidence.

The first test is referred to as the “show cause” test, while the second test is known as the “unacceptable risk test”.

The “show cause” test only applies to certain charges referred to as ‘show cause offences’ reflected in section 16B of the Bail Act 2013 (NSW).

If the alleged offence is not a ‘show cause offence’ the court will not need to be satisfied as to the ‘show cause’ test- it will skip straight to the ‘unacceptable risk‘ test to determine bail.

In determining the ‘show cause’ test, the court will consider factors such as the strengths and weaknesses of the prosecution case, period of time the accused person is likely to be incarcerated if bail is refused before the case comes to a conclusion, any special health care needs of the accused person which will make incarceration more difficult, the need to be out to better prepare his/her case, and any drug and alcohol or mental health programs or treatment required outside which will not otherwise be available in custody.

For example, if the prosecution case appears to have lots of ‘holes’ or issues in being able to establish each elements of the charge(s), while the accused person is likely to spend over a year in custody if refused bail- the court will be more inclined to granted bail.

In determining the ‘unacceptable risk’ test, the court will consider a list of factors reflected in section 18 of the Bail Act 2013 (NSW).

These factors include, the accused person’s community ties, job, criminal history, seriousness of the alleged offence(s), strength of the police case, any history of violence, any history of non-compliance to bail conditions or court orders, likelihood of imprisonment if found guilty, whether any bail conditions can be reasonably imposed to alleviate any bail concerns/risks (outlined above), and factors considered in the ‘show cause’ test.

After assessing the risks and any proposed bail conditions, the court will decide whether to grant bail with or without imposing conditions.

For example, a court may decide that after assessing the risks there are no unacceptable risks because of the following factors:

  • He/she has no previous criminal history
  • The police have a weak case
  • He/she will be in custody for a long time before the case finishes
  • The person has no history of violence
  • He/she has a long-standing job
  • An offer by an acceptable person to put up a large sum of money as a security to address the risk of failing to appear.

The court may decide to impose any of the following bail conditions if it considers it appropriate to address any identified bail concerns/risks:

  • Report at the local police station on certain days and/or between a certain period of time during the day/night.
  • ‘Acceptable person’ deposit or agree to deposit a specified sum of money on the condition it be forfeited in the event the accused person fails to comply with bail conditions.
  • He/she Surrender the passport.
  • Not to approach or go within 20km of an international departure.
  • Not to consume alcohol or drugs or undergo drug/alcohol testing as directed by a police officer at certain times.

A list of bail conditions that may be imposed is reflected in Division 3 of the Bail Act.

A court can impose those bail conditions that are safe enough to sufficiently alleviate the bail concerns/risks. In addition, section 20A of the Bail Act requires that the conditions imposed be:

  • Reasonable and proportionate to the offence;
  • Appropriate to the bail concerns;
  • No more onerous that necessary;
  • Reasonably practicable for the accused person to comply with;
  • Reasonable grounds to believe that the conditions are likely to be complied with by the accused person.

There can be harsh consequences for breaching bail. For example, failure to appear in court as part of a bail condition without a reasonable excuse is a criminal offence carrying a max penalty of up to 3-years imprisonment and/or $3,300 fine.

Generally, an accused person can only make one bail application in the Local Court. Being refused bail once can make it more difficult to make a second application. For this reason, it is important to ensure that the first bail application is done properly from the beginning.

Before making a bail application, it is recommended to speak to an experienced criminal defence lawyer for urgent advice and guidance.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.


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