By Amy Pisani, Sara Rahman, Madeleine Griffiths and Suzanne Poynton

To determine which factors of the Bail Act 2013 (NSW), are influential in first-court bail decisions in NSW Local Courts, and the reasons why courts release adult defendants who have already been refused bail by police. METHOD We descriptively and thematically analysed a dataset combining observations of 252 first court bail hearings in the NSW Local Court between February and May 2023, and administrative data from the BOCSAR Re-offending Database (ROD) and the New South Wales (NSW) Police Force’s Computerised Operational Policing System. We supplemented these data with a thematic analysis of 40 interviews with criminal justice stakeholders involved in adult bail proceedings in NSW Local Courts. RESULTS Of the 252 observations where police had refused bail, 110 defendants (44%) were released on bail by the court, with six released unconditionally, 12% were finalised at first appearance or had their bail dispensed with, and 44% had their bail refused by the court. Similar to prosecutors and police, magistrates were most concerned with a defendant’s criminal history and the nature and seriousness of the offence, and to a lesser extent defendant vulnerabilities and needs, when determining bail. There was also general agreement between police/prosecutors and the courts regarding bail concerns, with both parties most frequently identifying reoffending and endangering the safety of victims/community as their primary concerns. Two main differences between police and court decisions emerged from the analysis. Firstly, while magistrates identified bail concerns in the majority of matters observed, they were often satisfied that these risks could be mitigated by bail conditions. The bail conditions most commonly imposed were accommodation (82%), reporting (60%), non-contact orders (47%), and place restrictions (34%). Secondly, police rarely grant bail to people charged with show cause offences, whereas 55% of defendants charged with a show cause offence, who were refused bail by police, were able to successfully demonstrate to the court why their detention was not justified. Stakeholders reported that this occurred because police prioritise community and victim safety, have limited access to information from defendants and legal representatives, and do not apply discretion when applying the show cause requirement. CONCLUSION Legal factors, such as criminal history and seriousness of offences, are the most influential factors in both the police and courts’ bail decisions. However, magistrates who are legally trained, less subject to time pressures, and can be informed by legal practitioners, are more able to thoroughly assess show cause requirements and the suitability of bail conditions at the first court bail hearing. In the absence of these factors, police are more risk-averse  

Sydney: NSW Bureau of Crime Statistics and Research, 2024. 42p.