How is bail determined? How do I ensure I get bail?

How is bail determined?


Bail can be granted by the police at the police station upon arrest and charging or by a Magistrate or Judge at court. Bail applications can be made in any Local, District or Supreme Court in NSW.

How is bail determined in the different courts?

Ordinarily, an application for bail is first determined by the Local Court that is hearing the case. If the Police refuse you bail, you will be sent to the Local Court, where you will have the opportunity to apply for bail before a magistrate. If your application fails in the Local Court, you can make a special application in the Supreme Court of NSW. You can alternatively wait till your matter gets committed to the District Court (if it actually does go to the District Court) where you will have another opportunity to apply for bail.

How is bail determined in the new Bail Act 2013? 

The new Bail Act 2013 (NSW) has in many ways made it easier for defendants to get bail. The new Bail Act abolishes the presumptions in favour or against bail and is replaced by a new single criterion of “unacceptable risk”, relating to appearance in court and protection of the community.


What is an unacceptable risk?

The issue of an ‘unacceptable risk’ plays a large part in how bail is determined.

Pursuant to Section 17(2) of the Act an unacceptable risk  is an unacceptable risk that an accused person, if released from custody, will:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.


If the court is satisfied that there is an ‘unacceptable risk,’ then it is up to the defendant to offer conditions to the court as to how that risk can be ‘mitigated’ or ‘made less.’


What conditions can mitigate an unacceptable risk?


  • Reporting to the police station on a basis the court sees fit
  • Surrendering all passports
  • Not associating with co-defendants
  • Not contacting or approaching prosecution witnesses
  • Forfeiting a sum of money to the court
  • Curfew conditions
  • Other relevant conditions, such as ‘not occupy a driver’s seat.’


If there is no unacceptable risk = bail should be granted unconditionally


If there is unacceptable risk that can be sufficiently mitigated by bail conditions = conditional bail should be granted


If there is unacceptable risk that cannot be mitigated = bail should be refused


It is important when making a bail application that all possible conditions can be offered to the court before making a bail application. For example, if you do not have somewhere to live if you are granted bail, then it is a better idea to wait until you have an address to go to before making a bail application. It is also a good idea to speak to the prosecution to see what their attitude is to bail being granted.

For more information and case studies on some of our successful bail applications, go to:


If you need to apply for bail, call LY Lawyers on 1300 595 299 24 hours a day, 7 days a week and we will come to whatever court you are at and make a bail application in order for you to be released. We are also available to visit a loved one in jail to organise an application before the Local, District or Supreme Court.