This study examines the relationship between various statutory presumptions surrounding bail and the risk of bail refusal.

Method: A total 37,165 cases where defendants were either granted or refused bail by a Local Court were analysed to determine what impact the presumptions surrounding bail had on the risk of bail refusal. Controls included in the analysis were age; gender; Indigenous status of the defendant; number of concurrent offences; the number of prior criminal convictions; whether the offender had a previous conviction for a breach offence; the number of days between the date of first court appearance and the date of finalisation; whether the defendant had legal representation in the current case; and the plea in the current case at time of finalisation.

Results: After adjusting for the effects of other factors, the risk of bail refusal was found to be higher for those charged with offences where there was a presumption against bail or where bail should only be granted in ‘exceptional circumstances’. The risk of bail was also elevated for those with a larger number of prior convictions and/or concurrent offences. Three main anomalies were noted. Firstly, nearly half of those falling into the ‘exceptional circumstance’ category were on bail at their final court appearance. Secondly, factors such as prior criminal record, number of concurrent offences and delay in finalising a case, exert a much stronger influence on the risk of bail refusal than the presumptions surrounding bail. Thirdly, the bail refusal risk was higher for those charged with offences where there was no presumption for or against bail than for those charged with offences involving a presumption against bail.

Conclusion: The NSW Bail Act may need some simplification and clarification.