Criteria for determining bail

10.6 While the criteria for granting bail are generally prescribed by statute, they have their foundations in the common law. The primary factor in determining bail is the likelihood of the accused failing to appear.[9] In determining whether a person is likely to appear, certain matters must generally be taken into account, such as any previous failure to answer bail and the person’s background and family ties.[10] Other considerations include the:

  • seriousness of the offence;
  • protection of the victim;
  • protection of the community from further offending;
  • strength of the prosecution’s case;
  • severity of the possible sentence;
  • probability of conviction;
  • prior criminal history of the accused;
  • potential interference with witnesses;
  • court delay;
  • requirements for preparing a defence; and
  • view of the police and prosecution.[11]

10.7 Legislative provisions governing bail may also require officers to consider specified factors in making bail decisions, such as:

  • the safety or physical protection of a victim or other person, or a victim’s concerns about the need for protection;[12]
  • the likelihood of contravening a protection order;[13]
  • the likelihood of injury being caused to, or threats made against, a victim;[14]
  • any available rehabilitation program assessment;[15]
  • the interests of the accused, having regard to matters such as whether the accused is injured or has special needs arising from an intellectual disability or mental illness;[16]
  • the person’s demeanour;[17] and
  • the availability of suitable accommodation for the victim and any affected child.[18]

[9] See Re Robinson (1854) 23 LJQB 286; R v Appleby (1966) 83 WN 300; R v Mahoney-Smith [1967] 2 NSWR, 158; Burton v The Queen (1974) 3 ACTR 77, 78.

[10] See, eg, Bail Act 1978 (NSW) s 32(1).

[11] See, eg, M Findlay, S Odgers and S Yeo, Australian Criminal Justice (2005), 117.

[12]Bail Act 1985 (SA) s 10(4); Justices Act 1959 (Tas) ss 34(2), 35(2), 106F(1A); Bail Act 1992 (ACT) ss 9F, 23A; Bail Act 1982 (NT) s 24(3)–(6). Prosecutorial guidelines for family violence offences in NSW also require the prosecutor to put before the bail authority a victim’s need or perceived need for protection: Office of the Director of Public Prosecutions (NSW), ODPP Prosecution Guidelines <> at 12 March 2010, Appendix E.

[13]Bail Act 1985 (SA) s 10(1)(b)(iv), as amended by Intervention Orders (Prevention of Abuse) Act 2009 (SA) sch 1, cl 2.

[14]Bail Act 1982 (NT) s 24(1)(d) (where person arrested for breach of a protection order).

[15]Family Violence Act 2004 (Tas) s 12.

[16]Bail Act 1978 (NSW) s 32(1)(b).

[17]Family Violence Act 2004 (Tas).

[18] Ibid.