How is the length of time in custody before trial relevant to bail?

We explore this issue in the context of a case study.


Case study: R v Boyd [2015] NSWSC 1065


What happened in this matter?

Boyd was accused of retaliating against the victim in this matter, Mr Wilson-Hore. In the morning of the 22 February 2015, the victim had allegedly committed an aggravated break and enter at Boyd’s residence. The assault on Mr. Wilson-Hore was described as brutal, resulting in serious injuries.


What were the charges?

Boyd faced charges under ss 33, 35 and 93(c) of the Crimes Act 1900 (NSW) which were allegedly committed when he was on parole for a separate offence for which he was sentenced in 2011. The seriousness of the offences meant that Boyd would be required to “show cause” why his detention is not justified in order to obtain bail.


What is the relevant law for a bail application?

In order to seek bail, Boyd needed to show cause, in other words, show reasons as to why detention was not justified – section 16 A of the Bail Act 2013 (NSW). Boyd then had to establish that if there were any bail concerns, they would not amount to an unacceptable risk.


How was ‘cause’ shown?

The applicants submitted that Boyd “strenuously” denied the charges, was presumed innocent and that there would be an extremely lengthy delay between the application and trial. On this last point, Sperling J in R v Cain (2001) was quoted saying “the prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights”.

Family circumstances and community support were put forth in support of Bail, the fact that he has four children and is a qualified electrical fitter with excellent employment history and good prospects of obtaining work. He would also be able to continue receiving counselling.


What were the bail concerns?

Once Hamill J accepted that cause was shown, the bail concerns that he addressed were that he would fail to appear, commit another serious offence or endanger the safety of victims, individuals or the community.


How were the unacceptable risks addressed by the court?

Hamill J found that the proposed bail conditions were extremely stringent and when combined with the involvement of the counsellor, would alleviate the risk to such a degree that it would not be unacceptable. Hamill J considered also his community ties, the strength of the prosecution case and also the need to be free for other lawful reasons, mainly caring for his young family.


What was the final verdict on bail?

Hamill J granted Bail and mentioned that a significant factor was the length of time Boyd would have been likely to spend in custody before trial if bail was refused.



Nyman Gibson Miralis has over 50 years of experience in successfully obtaining bail for clients across all areas of criminal law.

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