If you're charged with a criminal offence, you may be offered bail. But how does bail work, how much does it cost, and do you get that money back?
For more information about bail, criminal charges, or to secure representation, get in touch with our bail application lawyers Sydney office for a confidential consultation.
What is Bail?
Bail is authority to be at liberty for an offence or alleged offence either with or without conditions. A bail application means either a release application; detention application; or a variation of an existing accused person at liberty on bail.
The typical bail application is a "release application" seeking authority from the court to be at liberty for an offence either with or without conditions.
Upon making a bail application at court, the court can either release:
- without bail
- release with bail
- grant bail with or without bail conditions
- refuse bail
Bail allows a person accused of a crime to be temporarily released from custody with or without conditions while their case progresses. The specific terms of a person's bail will vary from case to case, but may include:
- Financial surety
- Restrictions on movement
- Limitations on interacting with another person accused of the same crime, as well as any other conditions deemed necessary to ensure that the bail concerns are adequately ameliorated or addressed.
Those bail concerns that the court has in mind when determining whether or not to release an accused person back into the community on bail are the concern of the accused:
- failing to appear in court next time
- commit serious offence(s)
- endanger the safety of victim(s) or the community or individuals
- the concern of the accused interfering with witnesses or the evidence in the case.
Click here for a complete outline of the law on bail in New South Wales.
Bail is not guaranteed—whether you are eligible depends on the specific details of your case. For most cases, there is an automatic presumption of bail.
However, for serious offences, like murder, aggravated assault, or major drug crimes, bail is often hard to obtain with a presumption against bail. This means that it will be up to your lawyer to convince the court that bail should be granted. Having an experienced, good bail lawyer is critical.
Especially, given you can only make one bail application in the local court. If your first bail application gets refused by the court, you cannot make a second or subsequent bail application unless your lawyer can show a change of circumstances since the last bail application was made.
However, after a failed bail application the first time in the local court, you can then make a supreme court bail application. This is important to consider, especially for more serious cases where local court bail applications are often refused.
Factors That Impact Bail Costs in Australia
It goes without saying that the specific terms and conditions of bail depend on the case and its own unique features, which each case has. No one case will be the same even though the charges are the same.
A good criminal defence lawyer will be able to identify very quickly the unique features of your case to ensure that your case can stand out from the pack, giving you a much better chance at getting released on bail.
Typically these are the factors:
- Seriousness of the Offence and Strength of Police Case
- The Defendant's Criminal History
- Flight Risk and Community Ties
- State and Territory Bail Cost Differences
While the courts must consider many factors outlined in the Bail Act 2013 (NSW), including the section 18 factors and the show cause test in determining how your bail is set, some of the main factors include whether the offence you are facing is a show cause offence engaging the show cause requirement which creates a presumption against bail; and the section 18 factors, including the seriousness of the offence(s) and strength of police case; the accused person's criminal history; and the extent that the accused person will be a flight risk and his or her community ties when considering the risk.
Seriousness of the Offence and Strength of Police Case
If the charge is very serious, this will generally reduce the chances of getting bail but is not the sole determinant factor. If the charge is very serious that it falls within the "show cause" provision, essentially making it a "show cause" offence, then there is a presumption against bail, and this makes it harder to get bail. For example, if the offence is a "serious domestic violence offence", then the accused person must show cause as to why detention is not justified to the court. Being unable to show this will result in the refusal of bail.
If show cause is shown, then this does not yet result in the grant of bail. The court must next consider the "unacceptable risk" test. If the offence is not a "show cause" offence, then the court will bypass and not consider the show cause test exercise, instead it will go straight to considering the "unacceptable risk test" requirement.
The unacceptable risk test requires the court to grant bail only if the prosecution fail to convince the court that after assessing the bail concerns (mentioned earlier) by balancing and weighing the confined section 18 factors such as the seriousness and strength of the prosecution case (and other factors outlined in section 18 of the Bail Act) against those bail concerns that there is no unacceptable risk noting the proposed bail conditions that could reasonably be imposed to address any bail concerns.
The more serious the offence and the stronger the police evidence is, inherently the greater the flight risk; committing a serious offence; endangering the community and victim(s); and interfering with witnesses and evidence.
However, serious offences and strong police evidence against the accused does not necessarily preclude bail being granted on its own. Even if the offence is very serious such as murder, the court has and can grant bail if adequate conditions are put in place to address those bail concerns of flight risk; safety of the alleged victim and community; interference with witnesses or evidence, and committing a serious offence if granted bail back into the community.
As a general rule of thumb, the greater the flight risk (of the accused person fleeing if granted bail) the greater the need to ameliorate that risk by proposing a high surety of money as a cost of bail. This is offering the court either money or something of monetary value such as equity in a property as a security that if the accused person is granted bail and fails to appear in court, that money or value or money will be forfeited to the court. The greater the offering of bail security, the better it alleviates the flight risk concern that can significantly help improve the chances of bail being granted.
The money given as surety is returned at the end of the case if the accused person has not run away in compliance with his or her bail conditions.
The Defendant's Criminal History
Repeat offenders are likely to face stricter bail conditions, particularly if the accused has a record of violence, or has previously committed a serious offence while out on bail. Any association with criminal or terrorist organisations will also weigh against the accused.
The concerns of the accused being a flight risk, committing a serious offence if granted bail, endangering the victim and community, and interfering with evidence and witnesses all go up with the effect of a reduction in the chances of bail, requiring a greater effort in convincing the court to grant bail, if the accused person has a history of criminal convictions, especially of the same or similar type offences that has brought the accused person before the court on this occasion.
If the accused person was already on bail or on a good behaviour bond from a previous court conviction at the time of the new offence or alleged offence, then this also increases those bail concerns mentioned earlier.
The above factors, while making it harder to get bail in court, can be overcome by addressing those concerns by proposing the court to impose adequate conditions to be able to address those concerns.
For example, the greater the risk of the accused failing to appear in court next time if granted bail can be addressed by offering a higher amount of surety to the court thus increasing the cost of bail. This can range from a few thousand dollars to millions of dollars. The money is returned to the court if the accused person's case ends without breaching the bail conditions.
Flight Risk and Community Ties
Courts assess various factors to determine flight risk, including past failures to appear, access to financial resources, international connections, seriousness of the offence, strength of the prosecution case, and the availability of travel documents.
A higher flight risk often results in stricter bail conditions or denial of bail altogether if there is a greater concern for those factors against the accused person. Community ties, on the other hand, indicate the strength of a defendant's connection to their local area. Factors below can demonstrate a lower likelihood of fleeing:
- long-term residence
- stable employment
- close family relationships
- community involvement
This may mean a less need to offer money as surety to the court to try to get bail granted by the court in which can reduce the cost of bail.
State and Territory Differences
In which state you live, and have been accused of a crime, also plays a role.
- In Victoria, bail laws have gotten much stricter, especially for violent offences, making it harder for some defendants to get out.
- In New South Wales, the focus is on risk assessments, weighing up things like public safety and the likelihood of someone skipping court.
- Queensland has a similar approach but also heavily factors in community protection.
- In Western Australia, there's a tougher stance on repeat offenders.
- Tasmania tends to lean towards rehabilitation, especially for younger offenders.
- The Northern Territory has some of the strictest rules, particularly for serious crimes.
How Much Does Bail Cost?
It's a bit like asking, 'How long is a piece of string?' There is no such thing as a fixed bail price in Australia. Every case is different—in terms of the person who is accused, what crime they are accused of, and the specific circumstances of the alleged crime.
A criminal lawyer can help you understand how much you might be expected to pay. Factors that affect the cost of bail have been outlined earlier in this article such as criminal history, community ties, seriousness of the offence and strength of the prosecution case. A good criminal defence lawyer should put time to look carefully and thoroughly in your case, not just the charges, but your personal circumstances to identify unique features about you and your case in order to properly assess how much bail will cost. This may and often does reduce the cost of bail if done properly while increasing the chances of getting bail.
Typical Bail Amounts in Australia
Minor offences
Bail is usually granted with minimal conditions or even solely on an undertaking (which is a promise to appear in court). In many cases, there may be no financial cost attached, and instead, the accused is required to comply with basic conditions like reporting to police or avoiding further offences. Depending on the state, bail amounts (where applicable) can range from a few hundred to a few thousand dollars, though courts typically prioritise non-monetary conditions for lower-level offences.
Serious criminal offences
For more severe charges like aggravated assault, serious domestic violence offences, drug trafficking, or fraud, bail conditions become significantly stricter. Courts may impose higher monetary security—ranging from tens of thousands to hundreds of thousands of dollars—depending on the risk posed. Additional restrictions might include:
- Electronic monitoring
- Curfews
- Surrendering passports
- Regular police check-ins
In more serious cases, the burden of proof often shifts to the accused, requiring them to demonstrate why bail should be granted rather than the prosecution proving why it should be denied for "show cause" offences as outlined earlier.
No bail situations
Bail might be refused in cases where the accused poses a significant risk to public safety, has a history of failing to appear in court, or is charged with a very serious offence, like murder, terrorism, or repeat violent crimes.
Factors like past criminal behaviour, the severity of the alleged crime, and potential danger to witnesses or victims heavily influence the court's decision.
Types of Bail in Australia
Cash bail
Cash bail is the most straightforward and common bail surety that is used—this is an amount deposited directly to the court, which will be returned once the legal proceedings have concluded, assuming bail conditions have not been breached. The courts are more likely to grant bail on offering a cash surety than other forms of security due to its liquid nature and greater security it gives.
Property as bail
Depositing property as bail is a more complex process than cash as you will need to prove the value of the property by getting a valuation report prepared. In addition, if there is a mortgage to the property, you will have to get the bank's consent in writing for the equity to be used as security for bail for the accused person. You will not have to get a bank's approval if the property has been paid off with no mortgage attached to it. This will all need to come from the owner of the property and should for best results be done in an affidavit form rather than just a letter.
Promise to forfeit cash
The court can grant bail on the condition that you or an "acceptable person" agree to pay a specified amount of money or provide security if the bail conditions are not met. However, you are not required to hand over the money or security upfront—it will only be forfeited if you do not comply with your bail terms. This is considered a less stringent form of bail and is typically applied in cases involving less serious offences.
Bail on own recognisance
This is a bail condition which is sometimes set without financial payment. In this case, the accused is released based on a signed agreement to appear in court. This type of bail is generally granted for minor offences and to individuals who are not considered a flight risk or a danger to the community.
Conditional bail
Conditional bail is a type of bail where the accused is released from custody but must comply with specific conditions set by the court. These conditions are designed to reduce risks such as reoffending, interfering with witnesses, or failing to appear in court. Common conditions may include surrendering a passport, reporting regularly to a police station, adhering to a curfew, avoiding certain people or places, or undergoing drug and alcohol testing.
How To Pay for Bail in Australia
There are two main ways to cover bail costs, but if you cannot pay your bail, then there are avenues available to explore.
Personal funds
The simplest way, if possible, is to use your own personal funds or property to post bail. It involves the least amount of intervention from third parties but can be more different in facilitating than getting a third party to be surety. If bail is granted by the court, the next step is for the accused person to go through the administrative hurdles through the prison where he or she is in custody to be able to access their bank account and give the bail money to the court before being released.
Third party assistance
A third party—often a friend or family member—may agree to take financial responsibility for the accused's court attendance. This person pledges a set amount of money or assets as security, which may be forfeited if the accused fails to comply with bail conditions.
The person who is surety must be an "acceptable person" who must attend the court registry with his/her current bank statement to verify. Most people think that once bail is granted, then the accused gets out right away and everything is easy. This is not correct. After the grant of bail by the court, the next hurdle is for the pre-release conditions such as bail surety to be satisfied by the court registry. This can sometimes take time and may result in the accused person not being released on the same day that the court has granted bail.
Bail assistance programs
There are several schemes and non-profit programs that might be able to assist you in paying your bail, depending on your specific circumstances. These initiatives aim to reduce unnecessary pre-trial detention and support vulnerable people, including those experiencing financial hardship, homelessness, or mental health issues. Some key programs include:
State-based initiatives
These programs often provide case management, housing support, and assistance in meeting surety or reporting requirements. Some examples include:
- NSW Bail Assistance Program (BAP) which helps vulnerable people secure bail through supervised accommodation and support services.
- Victoria Court Integrated Services Program (CISP Bail Support) which provides support to people on bail with housing, mental health, and drug treatment services.
Justice advocacy and legal services
- Aboriginal Legal Services (ALS) is available in multiple states, and provides legal aid and assistance with bail applications for Aboriginal and Torres Strait Islander people, who are disproportionately affected by strict bail laws.
- Community Legal Centres (CLCs) offer free legal assistance, including help with bail applications for those who cannot afford a lawyer.
Non-profit bail funds and community bail assistance
While not exhaustive, there are some community-driven initiatives, including:
- Sisters Inside's "FreeHer" Fund which helps pay bail for women, particularly Indigenous women, who are jailed for minor offences due to an inability to afford bail.
- Dhadjowa Foundation which supports Indigenous families impacted by the justice system and may assist with advocacy around bail.
Court and Prisoner Support Programs
- Court Network operates in Victoria and Queensland, offering court support volunteers who help individuals navigate the bail process.
- Jesuit Social Services assists people exiting custody, including those granted bail but struggling to meet conditions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.