Being arrested and held in custody is confronting for anyone, especially if it is your first experience of the criminal justice system. One of the biggest questions for you and your family is whether you will be granted bail or remain in custody while your matter goes through the courts.

Understanding how that decision is made can help you prepare and respond.

The basic question: unacceptable risk

Under the NSW Bail Act, the court’s job is not to decide guilt at the first appearance. It is to assess whether there is an “unacceptable risk” in releasing you on bail. That risk is judged against four main concerns: whether you will fail to appear at court, commit a serious offence, endanger the safety of victims or the community, or interfere with witnesses or evidence.

If the court believes any of those risks cannot be managed with conditions, bail can be refused. If the risks can be managed, the court should grant bail with appropriate conditions.

Factors the court looks at

When assessing bail, magistrates consider a range of factors, including:

• The seriousness of the alleged offence and the strength of the prosecution case.
• Your criminal history and any past breaches of bail or court orders.
• Your ties to the community – family, employment, housing.
• Any health issues, including mental health or addiction.
• The likely delay before the case is finalised.

Our job is to present your situation in the best possible light: demonstrating stable accommodation, supportive family, employment prospects and any treatment or counselling you are engaged in.

How bail conditions are used

If there are concerns but not at an “unacceptable risk” level, the court can impose bail conditions to manage them. These might include reporting to police, residence requirements, curfews, non‑contact orders, surrendering a passport or staying away from certain locations.

Conditions must be reasonably necessary, proportionate and practical. We often see bail proposals that are either too weak to reassure the court or unnecessarily strict.

At The Defenders, we work with you and your support network to design conditions that address the court’s concerns without setting you up to fail.

What happens if police refuse bail

If police refuse you bail at the station, you will typically be held in custody and brought before a magistrate as soon as possible, usually within 24 hours. That first court appearance is critical. It may be your best chance to secure release while your matter is pending.

We prioritise urgent bail applications for clients in custody. Where possible, we gather information from family and employers, prepare proposed conditions and appear at court to argue for your release.

If bail is refused, we can advise on when and how a further application can be made.

The role of support people

Courts take comfort from knowing you have responsible people around you. A family member willing to provide accommodation or act as a surety, an employer confirming ongoing work, or a support person from a treatment program can all influence the outcome.

Their presence at court and their willingness to back your bail plan can make a real difference.

We often speak with support people directly to explain what being a surety involves and what the court will want to hear from them.

Getting help with a bail application

Bail decisions can shape the entire course of your case. Being on bail allows you to keep working, support your family and work closely with your lawyer on your defence. Being in custody makes everything harder and can put enormous pressure on you to resolve the matter quickly, sometimes at the expense of your rights.

If you or someone close to you has been arrested or is facing a first court appearance, contact The Defenders as early as possible.

We can provide urgent advice, attend the station or court, and put forward a strong, well‑structured bail application focused on addressing the court’s concerns.

Speak To A Criminal Lawyer Today!

Don’t face criminal charges on your own. Early legal advice can make all the difference and could be the key to having your charges withdrawn before court.

If you’ve been charged and want to know whether your charges can be withdrawn before court, contact our experienced criminal defence lawyers today for confidential advice and strong legal representation. Call us on (02) 9283 3033 or fill out our online form to get the support you need.