Can You Get Bail for a Serious Criminal Charge in Australia?
Home / Can You Get Bail for a Serious Criminal Charge in Australia?
Quick Answer
Yes, bail is possible for most serious criminal charges in Australia, but it depends on whether you can satisfy the bail tests under the Bail Act 2013 (NSW) and what conditions the court is prepared to impose.
The Australian Legal Practice prepares urgent bail applications for clients across Sydney, with offices in Burwood, Sydney CBD, and Parramatta and 24/7 access to a Principal lawyer on (02) 8084 9929.
How Bail Works in NSW
Bail is a court order allowing an accused person to remain in the community while their criminal matter is being finalised. In NSW, bail is governed by the Bail Act 2013 (NSW).
A bail decision can be made by:
- Police at the station, immediately after arrest
- Local Court Judge, when the matter is first listed in court
- District Court Judge, in serious indictable matters or appeals
- Supreme Court Judge, where Local Court bail is refused
The starting point is the presumption in favour of liberty. Bail can only be refused if the accused presents an unacceptable risk that cannot be mitigated, or if the offence is a show cause offence and the accused cannot show why detention is not justified.
The Two Bail Tests
NSW bail law applies two distinct tests depending on the seriousness of the offence.
Test | When It Applies | Burden |
Unacceptable risk test (s 17) | All bail decisions | On the prosecution |
Show cause test (s 16A) | Serious offences listed in s 16B | On the accused |
The unacceptable risk test (s 17)
The court must assess whether the accused presents an unacceptable risk that they will:
- Fail to appear at court when required
- Commit a serious offence if released
- Endanger the safety of victims, individuals, or the community
- Interfere with witnesses or destroy evidence
Bail can only be refused if the risk is unacceptable and cannot be sufficiently mitigated by bail conditions (s 20).
The show cause test (s 16A)
For more serious offences listed in section 16B, the accused must first show why detention is not justified. If they cannot, bail must be refused. Section 32 confirms the test is decided on the balance of probabilities.
If the accused can show cause, the court then applies the unacceptable risk test.
What Offences Trigger the Show Cause Test?
Section 16B sets out an exhaustive list of show cause offences. The main categories include:
- Offences punishable by life imprisonment (such as murder)
- Serious indictable offences involving a firearm (Part 3 or 3A of the Crimes Act 1900 or the Firearms Act 1996)
- Serious indictable offences involving a military-style weapon
- Unlawful possession of a pistol or prohibited firearm in a public place
- Serious personal violence offences where the accused has a prior conviction for a serious personal violence offence
- Serious sexual offences against a child
- Serious domestic violence offences (s 16B(1)(c1))
- Commercial drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW)
- Indictable offences committed while on bail or while serving a sentence in the community
What "Showing Cause" Can Look Like
Courts have accepted a range of circumstances as sufficient to show cause. Common arguments include:
- The accused has never been in custody before
- Delay in finalising the matter will cause significant hardship
- The accused has stable accommodation, employment, and family ties
- Detention would interfere with the ability to prepare a defence
- The accused has serious medical or mental health needs
- A strong combination of factors, even where no single factor would suffice on its own
No single factor is decisive. The court considers the combination of circumstances against the seriousness of the alleged offence.
Common Bail Conditions
Where bail is granted, the court can impose conditions to mitigate any identified risk. These are set out in sections 25 to 30 of the Act and commonly include:
- Reporting to police at regular intervals
- Curfew at a specified address
- Residence condition at an approved address
- Surrender of passport and travel restrictions
- Non-association conditions with co-accused or complainants
- Place restrictions prohibiting attendance at specific locations
- Security (cash or property deposited as surety)
- Electronic monitoring, particularly for serious domestic violence offences (s 28B)
What Happens If Police Refuse Bail
When police refuse bail at the station, the accused must be brought before the nearest available court as soon as practicable, usually the same day or the next morning.
Situation | What Happens Next |
Arrested on a weekday | Brought before Local Court same day or next morning |
Arrested overnight, weekend, or public holiday | Brought before Parramatta Weekend Bail Court |
Local Court refuses bail | Apply to Supreme Court (typically 6 to 8 weeks for listing) |
Change of circumstance | New Local Court application possible within days |
Bail After a Refusal
The Bail Act limits the right to a second Local Court bail application. A new application is only allowed where:
- There has been a material change in circumstances since the last decision
- Fresh evidence has emerged
- The accused was not legally represented at the first application
- Information was not presented at the first application that should have been
Otherwise, the next step is an application to the Supreme Court. If bail conditions are breached after bail is granted, police can arrest under section 77, and bail can be revoked under section 50.
Why The Australian Legal Practice Is Well Suited to Bail Applications
The Australian Legal Practice prepares urgent bail applications across Sydney, including for show cause offences and Supreme Court matters.
- 24/7 phone line on (02) 8084 9929 so an accused or family member can get in contact with a criminal lawyer immediately
- Three court-adjacent offices in Burwood, Sydney CBD, and Parramatta
- Parramatta Weekend Bail Court ready, with rapid attendance at short notice
- Principal-level representation with direct access to senior solicitors from the outset
- Experience preparing show cause submissions, including character material, employment and residence evidence, and bail conditions designed to mitigate risk
The first 24 hours after an arrest often determine whether bail is granted. Early legal representation is critical.
Final Thoughts
Yes, you can get bail for a serious criminal charge in Australia, but for show cause offences the burden falls on the accused. The strength of the bail application, the conditions proposed, and the supporting material are usually decisive.
Frequently Asked Questions
What is a show cause offence in NSW?
A show cause offence is a serious offence listed in section 16B of the Bail Act 2013 (NSW), such as murder, serious firearm offences, commercial drug supply, or serious sexual offences against a child. For these offences, bail is refused unless the accused can show cause why detention is not justified.
What is the unacceptable risk test?
The unacceptable risk test under section 17 requires the court to assess whether the accused presents an unacceptable risk of failing to appear, committing a serious offence, endangering safety, or interfering with witnesses. Bail can only be refused if the risk cannot be sufficiently mitigated by conditions.
Can I apply for bail again if it is refused?
Yes, in limited circumstances. A second Local Court bail application is allowed only where there has been a material change of circumstance, fresh evidence, or where the accused was unrepresented at the first application. Otherwise, the next step is the Supreme Court.
How long does it take to get a Supreme Court bail application heard?
Supreme Court bail applications typically take 6 to 8 weeks to be listed, although urgent matters can be expedited. Local Court applications based on a change of circumstance can usually be listed within a few days.
Can bail conditions be changed later?
Yes. Either the prosecution or the accused can apply to vary bail conditions if circumstances change, for example to relax a curfew once employment is secured, or to add restrictions if new information arises.
What happens if I breach my bail conditions?
If you breach bail, police can arrest you under section 77 and bring you back before the court. The court can revoke bail or impose stricter conditions. Breach of bail can also be a separate offence under section 79A.
Is bail more difficult for domestic violence charges?
Yes. Many serious domestic violence offences are show cause offences under section 16B(1)(c1), and the court can impose an electronic monitoring requirement as part of any grant of bail (s 28B). Detailed submissions are essential.
Can I get bail if I was arrested on a weekend?
Yes. The Parramatta Weekend Bail Court sits on Saturdays, Sundays, and public holidays for urgent matters where police have refused bail. A criminal lawyer can prepare and present a bail application at short notice.
If your matter is urgent, call (02) 8084 9929 today to arrange a free initial consultation.
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