Understanding bail decision-making: An observation and interview study

Abstract

This report examines the factors influencing bail decisions in New South Wales (NSW) Local Courts, specifically for cases where defendants are initially denied bail by police. It focuses on the Bail Act 2013 (NSW) to explore the court’s reasoning for releasing adult defendants previously refused bail.<br><br>

The study uses a mixed-method approach, including observations of 252 bail hearings in NSW Local Courts between February and May 2023, thematic analyses of 40 interviews with criminal justice stakeholders, and administrative data from the Bureau of Crime Statistics and Research's Re-offending Database and the NSW Police Force’s operational systems. This multi-source approach offers a comprehensive understanding of legal and procedural factors in bail decision-making. <br><br> Key findings show that, of the cases where police initially refused bail, 44% of defendants were subsequently granted bail by the court. Magistrates and police/prosecutors generally agreed on key risk factors for bail, primarily the risk of reoffending, potential danger to victims or the community, and the seriousness of the offence. However, magistrates often assessed these risks as manageable through specific bail conditions, such as mandated accommodation, reporting requirements, non-contact orders, and geographic restrictions. In contrast, police officers, working with limited time and resources, tend to refuse bail more readily, especially for serious or high-risk offences. <br><br> Regarding domestic violence cases, the report highlights recent amendments to the Bail Act under the Bail and Other Legislation Amendment (Domestic Violence) Bill 2024, which introduced provisions to make it harder for perpetrators of domestic violence to be granted bail. Although these amendments came after this study was conducted, they underscore the report’s findings that police are particularly risk-averse in cases involving family or community safety concerns. Defendants in such cases are less likely to be granted bail due to heightened concerns for victim safety and the potential for reoffending. This finding was consistent with the thematic analysis, where prosecutors cited domestic violence and previous breaches of Apprehended Domestic Violence Orders (ADVOs) as strong justifications for opposing bail.<br><br> The report concludes that while both police and magistrates prioritise criminal history and offence severity, courts are better positioned to assess comprehensive risk factors and apply tailored bail conditions, thanks to greater access to defendant information and legal representation at hearings. The study highlights the significant role of judicial discretion in mitigating risks while balancing the presumption of innocence and community safety. The findings are particularly relevant to ongoing discussions on bail reform and the need to address the disproportionate impact of remand on vulnerable populations, including Aboriginal defendants and those involved in domestic or family violence contexts.