The NSW Bureau of Crime Statistics and Research (BOCSAR) has reported a persistent rise in breaches of bail conditions. Despite these breaches, bail is more frequently continued rather than revoked, permitting the accused to remain in the community after violating their bail terms.

When a person is charged with an offence they will either be held in custody on remand or granted bail and released into the community awaiting their trial. If bail is granted, conditions will often be attached to their release. The most common bail conditions include non-association orders prohibiting the accused from contacting specific individuals, accommodation requirements specifying where the accused must reside, reporting conditions requiring the accused to regularly check in with authorities, and conduct requirements dictating specific behaviours the accused must adhere to while on bail.

According to data from BOCSAR, in June 2023, there were 13,712 recorded breaches of bail conditions. Bail was continued for 10,545 of these breaches while 3,167 resulted in bail being revoked.

Source: BOCSAR

Professor Julia Quilter from the School of Law at the University of Wollongong says crime rates have been falling across the Western world since the 1980s and that the rise in bail breaches may be attributed to changing police practices.

“While statutory reforms narrowing access to bail and or increasing the number of conditions on bail play a role in heightened bail breaches, an increase in the number of bail breaches is more likely to be the product of heightened surveillance and monitoring practices by police,” Professor Quilter said.

Criminal defence lawyer Patrick Schmidt says that many breaches of bail conditions are minor and can be as simple as the accused forgetting their court date.

“Once you’ve got bail, unless you’ve committed further offences they generally don’t revoke it,” Mr Schmidt said.

Where bail is denied or revoked, the accused is placed in custody on remand. Despite incarceration rates in NSW decreasing over the past four years, remand rates have reached a record high according to BOCSAR.

Source: BOCSAR

Between 2023 and 2024 the sentenced prison population in NSW decreased by 8.8 per cent while the remand population rose by 11.7 per cent. As of March 2024, 43.7 per cent of the adult prison population in NSW were people on remand. Of a total of 12,456 prisoners, 5,452 were in custody awaiting trial.

Source: BOCSAR

Mr Schmidt says the rise in remand rates and a reluctance to grant bail is concerning.

“You can’t just lock up everybody,” Mr Schmidt said.

“There’s the concept that everyone is innocent until proven guilty. So, where is that presumption if you’re not giving bail?

“We aren’t getting hearing dates for a year and a half so someone has to stay in custody all that time waiting when they could be found innocent.”

Professor Quilter says evaluating the risk of releasing an accused person on bail can be difficult.

“The main problem is that bail is about assessing risk and it is never possible to remove all future risks unless you keep everyone locked up,” Professor Quilter said.

“When a person released on bail commits a serious offence it is common for there to be calls to tighten access to bail.”

The NSW government has announced proposed legislative changes to bail laws following the murder of Molly Ticehurst. Ms Ticehurst was allegedly killed by her former partner, Daniel Billings, while he was out on bail. Mr Billings had been charged with four counts of stalking, three counts of rape, and one count of aggravated cruelty towards an animal. His bail conditions at the time of his release included an apprehended violence order for the protection of Ms Ticehurst and restrictions on him entering her hometown of Forbes.

The proposed reforms aim to limit the circumstances in which bail will be granted to those who have been charged with a domestic violence offence. It will also require those accused of the most serious domestic violence offences to wear electronic ankle monitors if released on bail.

Mr Schmidt says the proposed changes are a “knee-jerk” reaction in response to one tragedy.

“The sole purpose of bail is to make sure while your matter is being heard that the community is safe,” Mr Schmidt said.

“It’s got nothing to do with the seriousness of offences or domestic violence offences.

“The rights of the accused just always seem to be you’re guilty until proven innocent at the moment.”

Professor Quilter says the changes may lead to a better assessment of the risks involved in granting bail in the context of domestic and family violence.

“Empirical evidence suggests that those who have a history of domestic and family violence offences are more likely to commit further domestic and family violence offences,” Professor Quilter said.

“The real question will be whether the Government has got the Bill ‘right’ in terms of the categories of mooted show cause offences or whether the bar has been set too high.”

Professor Quilter says it is also important to consider the rights of an accused person when seeking to amend bail legislation.

“When Governments change bail laws to restrict access to bail, community safety is often the expressed justification, usually in the wake of a tragic fatality,” Professor Quilter said.

“In my view, it is always important to review the statutory and operational mechanisms surrounding bail when tragic incidents arise to ensure best practice is being pursued.

“However, bail laws should not be tightened in response to a single incident unless there is empirical evidence to indicate that there is a heightened bail concern.”

These domestic violence-related bail amendments come into effect on July 1 this year.

If you need to access domestic violence support services, please click the links below: