Bail Application and Conditions

4 December 2025 in Criminal Law | 6 min read | skip to FAQs

A bail application is a request to a court that an accused or convicted person be released from custody pending the determination of criminal proceedings against them. Bail is defined as the “authority to be at liberty for an offence” If an individual is charged with an offence they may be granted bail by the police or the court. Conversely if bail is not automatically granted the person will undergo, firstly an assessment of whether they have committed a show cause offence in court. If they are able to present a cause as to why they should be given bail, they are then assessed using the unacceptable risk test. If they are unable to convince the court that they should be given bail, they will automatically be refused bail. Brander Smith McKnight criminal defence lawyers have extensive experience in successfully applying for bail and provide a free 20-minute consultation.

The Bail Application Process

If an individual is charged with an offence and not granted bail by the police they will need to make a bail application in the court. We strongly recommend that this process be managed by an experienced criminal lawyer.

Show cause offences

When the court makes a decision regarding whether a person should be released on bail, they will firstly consider whether they have committed a show cause offence. This is a more serious offence and the presumption is, that the person is not entitled to bail unless it can be demonstrated otherwise. The onus is on the defendant to prove that their alleged crime doesn’t warrant ongoing detention, rather than the prosecution having to prove that their crime warrants ongoing detention. That is, the court will refuse bail unless the defendant can demonstrate to the court why they should be released on bail.

In general when the court makes a decision in relation to a show cause requirement, they will take into account any evidence or information that they consider credible or trustworthy. The decision by the magistrate or judge is not bound by the rules of law regarding the admission of evidence. The test that is applied in bail hearings is weighed up on the balance of probabilities rather than strict legal processes.

There is however, a list of automatic ‘show cause’ offences in section 16B of the Bail Act 2013 (NSW) which includes:

1. An offence punishable by life imprisonment;
2. A serious indictable offence that involves an intent to have sexual intercourse with a person under 16 yrs by a person who is 18yrs or older;
3. A serious personal violence offence, including assault occasioning actual bodily harm or grievous bodily harm;
4. A serious domestic violence offence, with a maximum penalty of 14 or more years imprisonment;
5. A coercive control offence;
6. Some serious indictable offences involving the supply, manufacture or use of a firearm or military style weapon;
7. A drug offence that involves a commercial quantity of drug;
8. A serious indictable offence that is committed while on bail or parole or if there is a warrant for their arrest or
9. Any attempt to or assisting or inciting another person to commit the above serious offences.

If a defendant who has committed an automatic show cause offence, is unable to convince the court that they should have bail, then bail will be refused. Conversely, if the court is satisfied that detention would not be justified, the defendant undergoes a further assessment that determines whether bail is declined or granted. This is called the unacceptable risk test. The reason for applying this test is to assess whether granting bail would present an unacceptable risk to the community, individuals, or victim in relation to endangerment or undue pressure with respect to the offence. It also considers whether the defendant is a flight risk.

The unacceptable risk test

This applies to the court’s determination of a bail application in relation to all offences, in addition to show cause offences, where the defendant has demonstrated to the court that bail is justified. It requires the court to assess whether granting bail would present an unacceptable risk. The magistrate or judge is guided by the section 17 (2) of the Bail Act 2013 (NSW). Specifically, if released from custody, the person may:

1. Fail to attend court, or
2. Commit another offence, or
3. Endanger the safety of victims, individuals or the community, or
4. Interfere with witnesses or evidence.

These are known as bail concerns and the court may address the presence of any of these concerns through the use of bail conditions. If the court decides that granting bail would still present an unacceptable risk even if conditions are imposed, bail will be refused.

Considerations surrounding bail concerns that help the court decide to grant bail are found in section 18(1)(2) of the Bail Act 2013 (NSW) and include:

1. The defendant’s criminal history, including if they have a history of violence or have committed a serious offence while on bail
2. The seriousness of the offence and whether domestic violence is involved
3. The defendants’s history of previous compliance whilst on bail or other conditions of supervision, such as AVOs
4. The presence of criminal or terrorist associations or connections
5. The likelihood (or not) of a prison sentence if found guilty
6. The length of time that the defendant may spend in jail if bail is refused
7. Special vulnerabilities such as aborigines, youth and those with cognitive or mental impairments
8. The need to seek legal advice

Bail Conditions

The Bail Act 2013 (NSW) provides for several bail conditions that may be imposed on an accused person. According to section 20A of the Bail Act 2013 (NSW) bail conditions may only be imposed if the bail authority is satisfied that the bail condition is

1. Reasonably necessary to address a bail concern, and
2. Reasonable and proportionate to the offence for which bail is granted, and
3. Appropriate to the bail concern in relation to which it is imposed, and
4. No more onerous than necessary to address the bail concern in relation to which it is imposed, and
5. It is reasonably practicable for the accused person to comply with the bail condition, and
6. There are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

The Determination of Bail Conditions

What bail conditions will be imposed depends on the circumstances of the offence and arrest. For example, bail conditions can impose:

1. Conduct requirements: these conditions control what a person can and cannot do. For example, a conduct requirement may compel you to comply with a curfew or surrender your passport.
2. Security requirements: these conditions may require you or another person to agree to pay money to the court if you fail to attend court.
3. Enforcement conditions: these conditions function in order to monitor or enforce compliance with another bail condition.
4. Character acknowledgements: these conditions may require people who know you to provide evidence that they regard you as a responsible person who will comply with bail requirements.

Varying Bail Conditions

Bail conditions that have been imposed on a person may be varied via a variation application set out in section 51 Bail Act 2013 (NSW). Variation applications can only be made by ‘interested persons’. The people who are defined as interested persons are outlined in section 51 (3) of the Bail Act 2013, and include

1. The accused person granted bail.
2. The prosecutor in proceedings for the offence.
3. The complainant for a domestic violence offence.
4. The person for whose protection an order is or would be made, under the Crimes (Domestic and Personal Violence) Act 2007.
5. The Attorney General.

How can BSM Sydney Lawyer assist you?

Brander Smith McKnight’s team of highly experienced criminal defence lawyers are here to advise you and apply for bail applications and varying bail conditions. Our criminal lawyers regularly represent clients who are in jail and require a bail application or varying of conditions. We will vigorously advocate for you and fight for your rights. The senior criminal lawyers at BSM Sydney Lawyers provide a free 20-minute initial consultation.

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Brander Smith Mcknight Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.