Report reveals why NSW Courts and Police disagree on bail

Link to Report Summary: 


Release date: Wednesday 30 October 2024


New research by the NSW Bureau of Crime Statistics and Research (BOCSAR) has looked at the factors that are influential in bail decisions in NSW Local Courts, and the reasons why courts release defendants who have been refused bail by police. When a person is charged, police decide whether the defendant should be remanded or granted bail. If police refuse a person bail, their decision is reviewed by a court, usually within 24 hours. However, of the people who are bail refused by police about half are granted bail at the first court bail hearing. In 2023, 53.5% of adults refused bail by police were granted bail by the courts.

Based on observations of 252 first court bail hearings and 40 interviews, this new study identified three main reasons for the disparity in court and police bail decisions:

  • When making bail decisions, police have a high concern for community and victim safety and are motivated to avoid responsibility for a person offending on bail. By contrast magistrates approach their decisions with a greater degree of authority and independence.
  • Police rarely grant bail in ‘show cause’ matters. Defendants with a presumption against bail are almost never granted bail by police, even in cases where an offender commits a minor offence while on bail. This is both because police apply very little discretion, and the accused is often unable to provide information or evidence to justify their release at the time of the police bail decision. 
  • Magistrates are more often satisfied that risks can be mitigated by suitable bail conditions. While police and magistrates generally agree about bail concerns, with both parties identifying reoffending and victim/community safety as their primary concerns, magistrates were more minded to implement bail conditions in response to these risks, often in response to  information provided by the defendant’s legal representative.

Executive Director of the NSW Bureau of Crime Statistics and Research, Jackie Fitzgerald, says “Police have been more conservative than the courts in their bail decisions for a long time – but until now we haven't known whether this was due to a different risk tolerance or other factors. We can now see from this new research that it is a bit of both. Police bail decision makers are often risk-averse and will remand people to avoid the responsibility of offending on bail. The decision then lies with the magistrate. It is also the case that the magistrates have much more insight into factors which influence the likelihood of bail - such the defendant's accommodation, job, and family situation.”


Other key findings include:

  • Bail decisions by both police and magistrates are heavily influenced by a defendant’s criminal history and the nature and seriousness of the offence.
  • In domestic violence matters police often bail refused as a de-escalation tactic; the circumstances of which have then passed by the time the court considers bail.

For comment please contact:

Jackie Fitzgerald, Executive Director, NSW Bureau of Crime Statistics & Research.

Phone: +61 423 139 687
Email: jackie.fitzgerald@dcj.nsw.gov.au


Last updated:

29 Oct 2024