My family member has been arrested in NSW. How can I help them get bail?

After an arrest in NSW, police can hold your family member for questioning for a limited time. They then either release them, charge them and grant bail, or charge them and refuse bail. If bail is refused, a Local Court Judge decides bail as soon as reasonably practicable, either by video link or at the local court. Call a lawyer before any police interview, and start gathering what a bail application needs.

What happens at the police station?

Your family member will be taken to a police station, where police will usually ask them to take part in a recorded interview. They don’t have to. In NSW they have the right to remain silent, and anything they say can be used as evidence. Get legal advice before they decide.

At the station, a custody manager is responsible for them. They are entitled to contact a lawyer, and to contact a friend or relative to let them know where they are. Once an interview has been done it can’t be undone, so the decision about whether to answer questions should be made with a lawyer, not alone in an interview room at 2am.

How long can police hold them?

Under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), police can detain someone after arrest for an “investigation period” of up to 6 hours. Some time doesn’t count towards the 6 hours, such as travelling to the station, waiting for a lawyer, interpreter or support person, medical attention, rest and meals. In practice they can be held for longer. Police can also ask a Local Court Judge or authorised officer for a detention warrant, which extends the period once by up to 6 more hours. After that, police must release them or charge them.

Can I speak to them?

Usually not directly while police are investigating. They may be allowed a call to a friend, relative or lawyer. The quickest way to get through is often for their lawyer to call the station.

If they’re under 18

Police must have a support person present, such as a parent, guardian or another adult, before interviewing a young person. They can also call the Legal Aid Youth Hotline on 1800 10 18 10. If police refuse bail, the Children’s Court deals with it, not the adult Bail Division.

If they’re Aboriginal or Torres Strait Islander

Police must notify the Aboriginal Legal Service through the Custody Notification Service, and the ALS will contact your family member.

What can happen after the interview?

Most people arrested in NSW are not held in custody until court. Police can release them without charge, charge them and release them with a court date, release them on police bail with conditions, or refuse bail and keep them in custody until a court decides.

How do police decide on bail?

Police apply the same test a court does under the Bail Act 2013 (NSW). For some serious offences, bail must be refused unless your family member can show why detention isn’t justified. For every offence, bail can only be refused if there is an unacceptable risk that conditions can’t manage.

Show cause offences. For certain serious offences, bail must be refused unless the accused shows cause why their detention is not justified (s 16A). These include some serious violence, serious drug supply, firearms and serious domestic violence offences, and an offence allegedly committed while the accused was already on bail or parole for another indictable offence. It’s a higher hurdle, and it’s where preparation matters most.

Unacceptable risk. Police and the court then ask whether there is an unacceptable risk that, if released, your family member would:

• Fail to appear at court

• Commit a serious offence

• Endanger the safety of victims, individuals or the community

• Interfere with witnesses or evidence (s 17)

Bail can only be refused if that risk is unacceptable and conditions can’t bring it down to an acceptable level (s 19).

If police refuse bail, they must bring your family member before a court as soon as reasonably practicable (s 46), and must give reasons for their decision.

What happens at court if police refuse bail?

If police refuse bail, a Local Court Judge decides bail as soon as reasonably practicable, usually the same or next day. Depending on where and when your family member was arrested, that happens either in the Local Court’s Bail Division by video link, or, on weekdays in much of Sydney, in the custody list at the local court, such as Bankstown, Burwood, Parramatta or Liverpool.

Where the hearing happens. On weekends and public holidays, and on weekdays for regional NSW, the Central Coast, Newtown, Waverley and the Downing Centre, bail is decided by the Local Court’s Bail Division. It is a statewide virtual court where everyone appears by video link. On weekdays, matters from the rest of Sydney, including Bankstown, Burwood, Parramatta and Liverpool, are heard at the local court. See What is the Bail Division in NSW? A guide for families.

• Timing

  In the Bail Division, someone processed and refused bail before 12 noon can be heard that day. After 12 noon, they are generally listed the next day. In a local court’s custody list, the matter is usually heard the same day or the next day the court sits. On busy days, matters can run late.

• Weekends and public holidays

  Every adult bail matter in NSW goes to the Bail Division, by video link.

• In person at a local court

  On weekdays, matters from much of Sydney, including Bankstown, Burwood, Parramatta and Liverpool, are heard in person in the local court’s custody list, not by video. Family can usually sit in the courtroom.

• Family can watch

  Bail Division hearings are open to the public, by video only. For the courtroom link or listing time, contact the Bail Division registry at [email protected]. On weekdays you can also ask your local court whether a remote room is available. Recording or photographing a hearing is an offence.

• What police rely on

  The facts sheet (the police version of the allegation) and your family member’s criminal history.

• What the defence brings

  Evidence that answers each of the court’s concerns: a confirmed address, letters from family and an employer, an offer of security, a place in treatment if relevant, proposed conditions, and any weaknesses in the police case.

• No lawyer?

  Legal Aid duty lawyers often appear for fresh custody matters, but they usually have many clients to get through and limited time to prepare detailed material or talk through your family member’s situation at length.

What does the court look at?

The court weighs the matters in s 18 of the Bail Act, including criminal history, community ties, the seriousness of the offence, the strength of the case, any history of complying with bail, how long your family member would likely spend in custody before the case ends, and any special vulnerability. A bail application is won by matching each concern with evidence.

• Safe accommodation

  Where they will live matters most. A letter from the householder confirming they can stay, with a copy of ID and a lease or rates notice, is strong evidence.

• Work, study and family

  A letter from an employer confirming their job, or evidence of study or caring responsibilities, shows ties that make them likely to turn up.

• Security

  A security is an agreement, by your family member or by someone else, to forfeit money if they fail to appear. Sometimes the money must be deposited up front. The court will want to know the person offering it understands what they could lose.

• Conditions that fit the risk

  Proposing conditions that answer the specific concern, such as living elsewhere, no contact or a curfew, makes it easier for the judge to say yes.

• Treatment

  If drugs, alcohol, mental health or medical treatment are part of the picture, a booked appointment or a place in rehab answers the risk of reoffending directly.

• Weaknesses in the prosecution case

  A weak case lowers the risk that your family member will run, and makes a long time in custody harder to justify.

• Special vulnerability

  Youth, Aboriginality, and cognitive or mental health impairment all count, and should be raised.

How can family help?

Call a lawyer straight away, ideally before any police interview. Then confirm where your family member can live, gather letters from family and an employer, and decide whether anyone can offer security. Being ready before the hearing makes the first application count.

What to tell the lawyer: their full name and date of birth, which police station they’re at, what they’ve been charged with (if you know), any health or medication needs, and any criminal history you’re aware of.

Three don’ts:

• Don’t discuss the case on calls from custody. They are recorded.
• Don’t contact the complainant or any witness, even to “sort it out”.
• Don’t post about it online.

What if the court refuses bail?

The first bail application is the one that counts. A second application to the same court is only allowed in limited circumstances, so it’s often better to apply once with everything ready than to rush. If the Local Court refuses bail, you can apply to the Supreme Court.

Under s 74, a court will only hear a further application if:

• your family member wasn’t legally represented the first time
• there is fresh information relevant to bail
• their circumstances have changed
• they are a child and the first application was made at their first appearance

This is why a hurried application at the first appearance, without an address, letters or a treatment plan, can make things harder later. Sometimes it’s better to wait a day or two and apply properly.

If bail is refused, your family member stays in custody, usually in a correctional centre. You can then apply to the Supreme Court, where the hearing is usually six to ten weeks after the first listing, and longer over the summer recess. It usually involves briefing a barrister.

What happens once bail is granted?

Your family member is released on conditions, such as living at a set address, reporting to police, a curfew or no contact with certain people. Conditions can be changed later by application. The matter will be relisted at the local court to determine their plea.

Breaching a bail condition is not an offence in itself, unless the conduct is a separate offence. Failing to appear at court is different: it is an offence under s 79.

If police reasonably believe a person has breached, or is about to breach, a bail condition, they can take no action, warn them, issue an application notice, issue a court attendance notice if they believe the failure is an offence, arrest them, or apply for an arrest warrant (s 77). A court or authorised justice can then release them on their original bail or vary the bail decision, which can include revoking bail (s 78).

What does a bail application cost?

A bail application in the Local or District Court is from $2,000 + GST for simpler, non-urgent matters, an urgent or weekend application from $3,000 + GST, and a Supreme Court application from $5,000 + GST plus barrister’s fees. Legal Aid may be available. See our overview of bail applications in NSW for the full process, or the fixed fees page for every fee we quote upfront.

William is a member of Legal Aid NSW’s summary, indictable and children’s criminal law panels. He can tell you on the first call whether Legal Aid might cover your family member’s matter.

Case study: bail for a first-time drug supply charge

Identifying details have been changed.

Sam, 20, was stopped by police, who found a traffickable quantity of MDMA and cocaine in his car. He was arrested and charged with supplying a prohibited drug. He had no criminal history. Police refused bail, arguing there was a risk he would continue to supply.

His family called us that night. We worked with them to gather letters of support and evidence of Sam’s job and studies, and at the bail hearing at Bankstown Local Court we proposed conditions aimed squarely at that risk:

• reporting to Bankstown Police Station once a week
• a $5,000 security
• no encrypted messaging apps

The Local Court Judge granted bail on those conditions, and the matter was adjourned for legal advice before plea.

Useful links

Legislation