Supreme Court bail application

In a situation where your bail has been refused or granted with conditions that you are unable to meet, you may be eligible to apply to the Supreme Court of NSW for release or variation.


What type of bail application can I make at the Supreme Court?

Your first option is to make a release application under section 49. Unfortunately, you are only allowed to apply once for release (bail) which means you must be well prepared.

However, the Court can hear a further release application if it can be shown that there exist new facts or circumstances that have arisen since your previous application. The Supreme Court must refuse to hear an application unless a new ground exists.

Your second option is to make a variation application. If you can’t meet the conditions of bail granted by a Local or District Court, you should first attempt to have the same court have the conditions changed.

After hearing the application, the court can refuse the application, or vary the bail decision. There is also a possibility that the variation may lead to tougher bail conditions.


Can the Supreme Court refuse to hear my bail application?

Yes, the Supreme Court can only hear a second release application on the following grounds:

  • You were not legally represented when your first application was dealt with, and you now have legal representation, or
  • Material information relevant to the grant of bail is to be presented in this application, and it was not presented to the court in the previous application, or
  • Circumstances relevant to the grant of bail have changed since the previous application was made.

If these grounds do not arise, the Supreme Court must refuse to hear the application.


What will happen in court?

An application will need to be lodged with the Supreme Court of NSW Registry. The application will be processed and listed. It usually takes about two weeks before it can be heard.

When your application is heard in court, evidence will need to be presented from people that will support your bail application. In particular, evidence will be required from those that will assist you with a security deposit or who you might live with until your given court date. These people will need to physically attend the Supreme Court.


What if I apply for bail while my case is pending appeal?

A bail decision can be made while substantive proceedings for an offence are in progress, including any appeal against conviction or sentence. The key consideration in the success of this application would be whether the appeal has a reasonable prospect of success on appeal.


Court of Criminal Appeal bail application


Has your bail application been refused at the Supreme Court of NSW?

In accordance with section 67 of the Bail Act, the Court of Criminal Appeal (CCA) may hear an application for bail in limited circumstances.

Such circumstances include where:

  • The Court has ordered a new trial and it has not commenced.
  • The Court has made an order to continue committal proceedings.
  • The Court has directed a stay of execution of a conviction.
  • An appeal from the Court is pending in the High Court.
  • A bail decision has been made by the Land and Environment Court, Industrial Court, or the Supreme Court.


What if I want to apply for bail but have a pending CCA conviction appeal?

A court is not to grant bail or dispense with bail for any offence for which an appeal is pending in the Court of Criminal Appeal against conviction or sentence, unless special or exceptional circumstances exist.

If the appeal concerns what is usually regarded as a “show cause” offence, the accused will need to instead establish that special or exceptional circumstances exist to justify a grant of bail.


Can ‘prospect of success’ be a ‘special or exceptional’ circumstance?

In the matter of Seong Won Lee and Do Young Lee v Regina [2012] NSWSC 1168, two accused were convicted on separate counts relating to firearms offences and supply of drugs.

The matter was sent back for a re-trial on the basis of a miscarriage of justice due to the illegal release and possession of a compulsory examination to the DPP and its use in trial.

In relation to bail, Hall J found that one single ground could be enough to substantiate a special or exceptional circumstance. Hall J went on to state that where an applicant relies on his “prospect of success” at trial, it would not be enough to show a mere arguable ground of appeal.

For the application to be held as a special or exceptional circumstance, what must be established is a “ground of appeal which is certain to succeed and one which can be seen without detailed argument to be certain to succeed”. As the applicant had not shown this, the appeal was dismissed.


Can an ‘unreasonable verdict’ amount to a ‘special or exceptional’ circumstance?

In the matter of DPP v SKA [2009] NSWCA 51, the accused was convicted of charges relating to aggravated sexual intercourse and aggravated indecent assault. His Honour ordered the sentence to commence at the date of sentence, but ordered a stay on the execution of the sentences and granted bail in the interim.

The accused lodged an appeal against the conviction and sentence. The Crown sought a review of the bail and similarly appealed against the sentence.

In relation to bail, it was submitted that the verdicts made by the jury were unreasonable and that on appeal, the defendant would enjoy an extraordinarily high prospect of success. Buddin J stated that he was prepared to accept that the respondent could point to matters capable of reflecting, at least to some extent, on the reliability of the complainant and the evidence.

This meant he had at least an arguable case in relation to his appeal against conviction. However, that would not be enough to satisfy the “special or exceptional circumstances”. The bail was revoked.