Bail Applications & Appeals

If you are accused of a crime, being granted bail means that you are released into the community until your trial date.

Whether you will be granted bail depends on several factors. The first of which being whether the offence you are accused of is a “show cause offence”. A full list of what is considered a show cause offence is found in section 16B of the Bail Act NSW 2013 (“the act”).

Once the court has determined whether the offence you are being accused of is a show cause offence, the court must then determine whether you, the accused person, have demonstrated to the court why your imprisonment until the commencement of your trial is unjustified.

If the court has determined that you have not demonstrated why your detention is unjustified, then bail will be refused and you will remain in jail until your trial. However, if the court determines that you have crossed the necessary threshold, they then apply what is known as the “unacceptable risk test”.

The unacceptable risk test is to determine whether allowing you to return to the community would present an unacceptable risk to the alleged victim or society at large. The factors the court is to consider are listed in section 18 of the act.

If the court determines that your release poses an unacceptable risk, then bail is denied. However, if they determine that there is no unacceptable risk, you will then be granted bail, and may be subject to certain bail conditions. These bail conditions must comply with section 20A of the act which in essence mandates that the condition must be necessary and proportionate.

Barker Evans appears in bail applications and also represents clients in appeals from lower jurisdictions to a higher court.

An appeal is an application to a higher court to reconsider the decision of a lower court. In all appeals (except appeals from the Local Court to the District Court) you will need to show that there has been an error of law.

Criminal appeals are governed by the Crimes (Appeal and Review) Act 2001 (NSW) (the Act).

Under section 11(1) of the Act, any person who has been sentenced by a Local Court may appeal to the District Court against the severity of the sentence. A person may also appeal their conviction, provided the appeal is lodged within 28 days of the finalisation of their matter.

Should you require advice related to a bail application or an appeal, please contact our office on (02) 8379 1892.