Bail and Change of Circumstances (NSW)
In New South Wales, when a person has been refused bail by a court, they may make a second application for bail only in limited circumstances. The circumstances where a second application for bail may be made are set out in the Bail Act 2013. This page outlines when a fresh bail application can be made, and when an application can be made to vary the conditions of bail.
Bail review
A person who has been refused bail by the police or by another court may apply to the Supreme Court of New South Wales to have this decision reviewed.
Fresh bail application
Under section 74 of the Bail Act 2013, a person may make a second bail application to the same court only if one of the following circumstances is present:
- the person was unrepresented when they made their first bail application, and now has legal representation
- material evidence relevant to the grant of bail is to be presented to the court and this information was not presented at the last bail application
- circumstances relevant to the grant of bail have changed since the previous bail application.
Change of circumstances
A court may find that there has been a change of circumstances that justifies hearing a further bail application in the following situations:
- where there is going to be an unforeseen delay in finalising the proceedings
- where a committal hearing has been held, and weaknesses in the prosecution case have become evident
- where the accused is having difficulty accessing the brief of evidence while in custody.
A court will not find that there has been a change of circumstances that justifies hearing another bail application based on:
- the existence of facts or circumstances that were within the knowledge of the accused person at the time of the previous bail application
- the fact that the accused is proposing to live at a different address the address that was proposed at the previous application.
New material evidence
A court may find that new material evidence justifies hearing a further bail application if:
- new witnesses have come forward and given evidence consistent with the accused’s innocence
- prosecution witnesses have changed their evidence leading to a weaker prosecution case than at the time after the previous file application.
Application to vary bail
Under section 51 of the Bail Act 2013, an application may be made to vary the conditions of bail by the accused person, by the prosecution, or by the alleged victim of a domestic violence offence.
The New South Wales legislation does not specify that a change of circumstances is needed in order for the conditions of bail to be varied.
A person may seek to vary the conditions of their bail because the conditions are no longer necessary or appropriate. They may also seek to vary their bail conditions because their circumstances have changed and the conditions are no longer practical. This may be because the person has obtained full-time work and can no longer comply with conditions such as a curfew, or a requirement to report to the local police at particular times.
The prosecution may apply to vary the conditions of a person’s bail on the basis that there are risks associated with the current bail conditions, or because the person has breached the conditions of their bail.
A court that hears an application to vary bail may:
- vary the bail decision
- decline to vary bail.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.