Unacceptable Risk and how it impacts Bail

The decision to grant bail in NSW involves a process to ensure that your release does not pose a threat to the community or the judicial process. The process begins with the unacceptable risk test, this assesses the potential risks associated with granting bail. If you meet the criteria, the show cause test is then applied, particularly for serious offences, required you to justify your release.

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This article will cover the specifics of the unacceptable risk test, how impacts bail decision, and the various factors considered by the court. The article will also mention the relation of the unacceptable risk test and the show cause test, providing a guide of the bail assessment process. 

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What is Unacceptable Risk?

Unacceptable risk refers to specific types of risks assessed by the court to determined if you pose a threat that justifies denying bail. Under the Bail Act 2013 (NSW), section 17, the court considers the following risks: 

Types of Unacceptable Risks

1. Risk of Failing to Appear at Court 

The court will evaluate whether you are likely to attend all required court appearances. Factors such as your past criminal behaviour, community ties, and the seriousness of the offence are considered. 

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2. Risk of Committing Further Offences 

The court assesses the likelihood that you will commit additional crimes if you are released on bail. This involves examining your criminal history and the nature of the charges.

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3. Risk of Endangering the Safety of Victims, People, or the Community

The court will largely consider the safety of the community when deciding to grant you bail. The court considers whether you pose a threat to specific people such as victims, witnesses, or the community.

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4. Risk of Interfering with Witnesses or Evidence 

The court will consider the potential of you interfering with the legal process, including tampering with evidence or interfering with witnesses.

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While bail concerns refer to the general concerns about your behaviour if released, unacceptable risk specifically indicates a reason to deny bail. Bail concerns are broad and can include issues such as your health, social ties, whereas unacceptable risk focuses on clear and present dangers which cannot be mitigated by bail conditions.

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If the court finds that there is no unacceptable risk, then bail must be granted. This principle ensures that your rights are upheld unless there are reasons to deny it. The court may impose specific conditions to mitigate any risks, but if these conditions sufficiently mitigate the risks, you should be released on bail.

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Determining Responsibility for Proving Unacceptable Risk

Under the Bail Act 2013 (NSW), the responsibility for demonstrating that an unacceptable risk is present lies with the prosecution. The prosecution must present evidence and arguments to convince the court that you pose one or more risks outlined in section 17 of the Act. These risks include failing to appear at court, committing further offences, endangering the safety of individuals or the community, or interfering with witnesses or evidence.

The burden of proof significantly impacts the proceedings and strategies during bail hearings. The prosecution must establish the presence of an unacceptable risk, they are required to present evidence such as criminal records, past behaviour, and any relevant information which supports there is an unacceptable risk. Moreover, the prosecution needs to develop an argument to show how your release on bail court be a danger to the safety of the public or the judicial process. 

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The defence can focus on rebutting the prosecution’s claims and highlighting factors that will mitigate these risks. You and your lawyer can also suggest specific bail conditions which address and mitigate any risks presented. Additionally, your defence will present evidence of your good character, strong community ties, and other factors to show you will be a low risk if granted bail.

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The unacceptable Risk Test

The unacceptable risk test is a test used by the courts in NSW to determine whether you should be granted bail. The test evaluates whether your release poses any significant risks which cannot be mitigated by imposing bail conditions. The aim of this is to balance your rights with the safety of the community. 

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The process involved in the unacceptable risk test is as follows: 

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1. The Initial Assessment 

When you apply for bail, the court conducts an initial assessment to identify any potential risks which are associated with your release. This involves reviewing the case, your criminal history and other factors 

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2. Identifying Risks 

The court considers different types of risks such as: 

1. Risk of failing to appear 
2. Risk of committing further offences 
3. Risk of endangering the safety of the community 
4. Risk of interfering with witnesses of evidence

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3. Evaluating Risk Mitigation

If any risks are identified, the court then evaluated whether these risks can be mitigated through specific bail conditions. This can include conditions such as reporting to police or adhering to a curfew.

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4. The Decision 

The court will make a decision to grant or deny bail based on the assessment of risks and the conditions to mitigate this. If the court finds that the risks cannot be adequately managed with conditions, bail will be refused.

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Source: Section 16 Bail Act NSW 2013

How to mitigate Unacceptable Risk

You and your legal representatives can use several strategies to mitigate any risks and increase the likelihood of being granted bail. By addressing the concerns of the court and offering bail conditions you will demonstrate a commitment to compliance and the safety of the community. 

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The most effective way to mitigate unacceptable risks is by proposing bail conditions which address the concerns. These conditions can include: 

1. Regular reporting to the police 
2. Surrendering your passport 
3. Curfew 
4. Residence requirements 
5. Electronic monitoring 
6. No contact orders 

Legal arguments and evidence are crucial in showing the court that you are a low risk. You can present character references, evidence of employment, and strong community ties to support your case. Medical records and evidence of personal issues can also be supportive. Legal representation is essential to form arguments to the court and show you are committed to complying with bail conditions. 

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If the court determines that the conditions for bail proposed mitigate the identified risks, you will be granted bail. 

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Legal Implications of Being Deemed an Unacceptable Risk

If you are deemed an unacceptable risk, the immediate consequence is the denial of bail. This decision means that you will remain in custody, typically in a remand center, until your court date or a successful bail application. Being held in remand can significantly impact your ability to prepare your defence, maintain employment, and support your family. The environment in remand can also be stressful and challenging, especially for first time offenders.

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The long-term implications of being denied bail due to being deemed an unacceptable risk can be severe. Being in custody for a long time can lead to a loss of employment, financial strain, and personal issues. It can also affect your mental and physical health. However, the time spend in remand will be factored into the overall sentence if you are found guilty. 

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When bail is denied, you still have alternative legal remedies available. One option is to appeal the decision to a higher court, such as the Supreme Court. This involves submitting a new bail application, usually with more evidence or arguments to address the reasons for the initial refusal. 

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If the court maintains its decision to deny bail, you will have to remain in remand until your future court dates. However, circumstances such as new evidence occurring could justify a new bail application. You can seek a bail review by the Supreme Court or even higher courts if necessary.

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Need legal assistance with your bail? 

If you have any questions regarding your bail or the bail of someone you know, do not hesitate to reach out to Faraj Defence Lawyers. Our experienced team of defence lawyers is here to provide the guidance and support you need to navigate the bail process. 

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Call us now at (02) 8896 6034 or schedule in a free initial consultation virtually or at our Parramatta Office.