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What Is an Unacceptable Risk in NSW Bail Applications?

  • Writer: Michael Confos
    Michael Confos
  • Jul 10
  • 4 min read

When deciding whether to grant bail, one of the most important questions a court must consider is whether releasing the accused would create an unacceptable risk.

The concept of unacceptable risk sits at the centre of the Bail Act 2013 (NSW) and is considered in almost every contested bail application. If the court is satisfied that any identified risks can be appropriately addressed through bail conditions, bail may be granted. If not, bail may be refused.

Understanding what an unacceptable risk means can help accused persons and their families better understand how bail decisions are made.

If you require urgent advice regarding a bail application, visit our dedicated Bail Lawyer Sydney page:

What Does “Unacceptable Risk” Mean?

An unacceptable risk is a risk that the court considers cannot be adequately managed if the accused is released on bail.

The court must assess the circumstances of each case individually before deciding whether releasing the accused would create an unacceptable risk.

The existence of a possible risk does not automatically mean bail will be refused. The court must determine whether any identified risk can be sufficiently reduced through appropriate bail conditions.

Need Urgent Advice?

If you or a family member has recently been arrested, obtaining legal advice promptly may assist in preparing a bail application.

Learn more by visiting our Bail Lawyer Sydney page:

What Risks Does the Court Consider?

When assessing bail, the court may consider whether there is an unacceptable risk that the accused will:

  • Fail to appear at future court proceedings.

  • Commit another serious offence while on bail.

  • Endanger the safety of victims, witnesses or members of the community.

  • Interfere with witnesses or evidence.

These considerations are set out in the Bail Act 2013 (NSW).

Does an Unacceptable Risk Automatically Mean Bail Will Be Refused?

No.

A common misconception is that if the prosecution identifies a risk, bail must automatically be refused.

That is not how the legislation operates.

Instead, the court considers whether suitable bail conditions could adequately reduce the identified risks.

Every application is determined according to its own facts.

What Information May Help Reduce Risk?

The court may consider a wide range of information when determining whether risks can be managed.

Depending upon the circumstances, this may include:

  • Stable accommodation.

  • Ongoing employment.

  • Strong family support.

  • Medical circumstances where relevant.

  • Previous compliance with bail.

  • Proposed reporting requirements.

  • Curfews.

  • Other appropriate bail conditions.

Every matter is different.

Preparing a Bail Application

Preparing a properly supported bail application may assist the court in assessing whether any identified risks can be appropriately managed.

Supporting documents may include:

  • Employment letters.

  • Proof of residence.

  • Medical reports where relevant.

  • Character references.

  • Proposed bail conditions.

Early preparation allows relevant information to be placed before the court.

How Does the Court Assess Each Case?

There is no checklist that guarantees bail will be granted.

Instead, the court carefully considers:

  • The alleged offences.

  • The strength of the prosecution case.

  • Criminal history.

  • Personal circumstances.

  • Community ties.

  • The submissions made by both parties.

  • Whether proposed bail conditions adequately address identified concerns.

Each decision depends upon the individual circumstances of the accused.

What Happens If the Court Finds an Unacceptable Risk?

If the court concludes that an unacceptable risk remains despite proposed bail conditions, bail may be refused.

If the court is satisfied that appropriate conditions sufficiently reduce the identified risks, bail may instead be granted subject to those conditions.

Understanding this assessment is one of the most important aspects of the bail process.

Why Early Legal Advice Matters

The assessment of unacceptable risk often involves detailed legal submissions and careful preparation.

Obtaining legal advice promptly allows time to gather supporting material, consider appropriate bail conditions and properly prepare the application before it is heard.

Why Choose Michael Confos?

If you or a loved one requires advice regarding a bail application or another criminal law matter, Michael Confos provides legal representation for clients throughout Sydney in criminal law matters, including bail applications.

Learn more:

Criminal Lawyer Sydney

Bail Lawyer Sydney

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Sources

Disclaimer

The information contained in this article is provided for general informational purposes only and does not constitute legal advice. It should not be relied upon as legal advice or as a substitute for obtaining legal advice tailored to your individual circumstances. Every criminal matter depends on its own facts and the applicable law. Reading this article does not create a solicitor-client relationship. Michael Confos is not your lawyer. You should obtain independent legal advice from a qualified Australian legal practitioner regarding your specific circumstances.

 
 
 

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