Bail and remand are related to an accused person’s freedom before their trial begins. Bail allows an individual to be released into the community under certain conditions while awaiting court proceedings. In contrast, remand involves keeping the accused in custody until their trial or other legal matters are resolved.

What is Bail?

Bail is a legal mechanism that allows an accused person to be released from custody while they await court proceedings. It comes with conditions designed to ensure that the individual will return to court and not engage in further criminal behaviour during this period.

Key Points About Bail:

• Purpose: Bail is not a punishment. Its main goal is to ensure the accused attends court as required.
• Who Can Grant Bail? Both police officers and the courts have the authority to approve or deny bail, depending on the circumstances.
• Common Bail Conditions: These may include reporting to a police station, obeying a curfew, or avoiding contact with certain individuals.
• When is Bail Denied? Bail can be refused if the accused is considered a flight risk, a danger to the community, or likely to interfere with witnesses or commit new offences.

What is Remand?

Remand refers to the detention of an accused person in custody while they wait for their trial or another legal resolution. It typically occurs when bail is denied or the person is unable to meet bail conditions.

Key Points About Remand:

• Purpose: To protect the community, ensure the accused appears in court, and prevent interference with the legal process.
• When is Remand Used? If the accused poses a significant risk to public safety or is unlikely to comply with bail conditions, remand is the likely outcome.
• Impact of Remand: Being held in custody can have serious personal consequences, such as loss of employment, family disruption, and mental health issues.
• Presumption of Innocence: It’s important to note that people on remand have not been found guilty and are legally presumed innocent.

How Do Courts Decide on Bail?

When deciding whether to grant bail, the courts weigh several factors, including:

• The seriousness of the offence
• The risk of committing further crimes
• Likelihood of the accused appearing in court
• The potential threat to public safety
• The accused’s personal situation (e.g. employment, family ties, health)

Legal Framework: The Bail Act 2013 (NSW)

In New South Wales, the Bail Act 2013 sets out the rules for granting or refusing bail. It introduces a risk-based approach, where courts must assess the likelihood of certain risks if bail is granted, such as reoffending or fleeing.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

See author's posts