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NSW bail applications for serious offences

Last time, we explored a basic overview of a bail application in New South Wales. In this article, we will take a deeper dive into what the Judge considers when a bail application is heard in relation to a serious offence. We will also examine two real-life cases that were heard in the higher courts.

Firstly, the Judge will consider reasons why detaining the accused is not justified. If the Magistrate is not satisfied, then bail would be refused. If the Magistrate is satisfied with the reasons, then the Magistrate will apply the ‘unacceptable risk test’. The accused must be refused bail if there is an unacceptable risk that the accused will:

  • fail to appear at any proceedings for the offence;
  • commit a serious offence;
  • endanger the safety of victims, individuals or the community; or
  • interfere with witnesses of evidence.

McAndrew v R [2016] NSWCCA 58

Mr McAndrew was charged with a serious offence, namely armed robbery, and he failed to convince the Court of Appeal that his detention was not justified.

Mr McAndrew submitted four arguments:

  1. He needed to take care of his newborn child;
  2. He was unable to adequately grieve the loss of his grandmother whilst he was imprisoned;
  3. He intended to plead not guilty; and
  4. He needed to take care of his mother who had suffered a series of strokes.

The Court rejected all arguments from Mr McAndrew and concluded that his personal and family reasons do not easily translate into a demonstration that his continued imprisonment should not continue. Therefore, Mr McAndrew’s bail application was refused.

R v BNS [2016] NSWSC 350

BNS was charged with a serious offence that is, possession of a commercial quantity of a prohibited drug. The Court dismissed BNS’ bail application for the following reasons:

  1. The Prosecution had a very strong case.
  2. BNS has a high risk of not appearing in Court because he is a citizen of a foreign country and has no familial or community ties to Australia.
  3. BNS is likely to face a substantial term of imprisonment if convicted.

Although BNS’ mother was prepared to offer AUD$1,000,000.00 as a bond, the Court was not convinced that BNS had any sense of obligation to his mother with respect to that money. Furthermore, the Court could not assess the relative impact of the loss of that sum to BNS or his mother in the event that he does not appear.


Convincing the Court to grant bail is not an easy task, especially in relation to serious offences. Our lawyers have been instructed to apply for bail on many occasions and have a very clear understanding of what Judges are looking for. Recently, our team successfully obtained bail for a client who was charged with aggravated sexual assault. If you have been charged with a serious criminal offence, we can help you attain the outcome you deserve.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

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