By Paul Gregoire and Ugur Nedim
As of 7 July 2025, a new Bail Division that will centralise all weekday first bail hearings for adults whilst in police custody commenced operating in New South Wales. The controversial proposal will initially affect the management of bail matters relating to regional areas throughout the state, prior to the new process being rolled out in metropolitan Sydney at a yet to be determined time.
The new Bail Division will operate virtually, via audio-visual link (AVL). The virtual court, which remains open to the public, will see defendants, lawyers, police prosecutors and any support persons appearing together in video conference, via the platform Webex.
The NSW government advises the reforms will streamline bail hearings across the state and bring about consistency in bail outcomes.
The NSW Chief Magistrate Michael Allen is overseeing the establishment of the new division that will consist of six virtual courtrooms covering different regions across the state. There will eventually be a seventh additional virtual courtroom. And six additional magistrates have been hired to staff the initiative which involves a $34 million investment over four years.
Sparked by the murder of a young woman by her male partner, who’d been released on bail by a court registrar during a weekend bail hearing, after having committed a series of serious domestic violence offences against his victim, the reform is a recognition that court registrars are no replacement for magistrates and judges when serious bail matters are being heard.
The six virtual courtrooms of the Bail Division commenced operating at 9.30 am on Monday, as they will do each weekday from now on, and a daily cut-off time of 12 pm applies.
As set out in the NSW Local Court practice note pertaining to the new division, this means that if an accused has been arrested and processed by 12 pm, then they’re eligible to have their matter dealt with that same day.
Practical matters
The Local Court of New South Wales Practice Note – Bail Division Proceedings was released on 27 June.
The document notes that the new division “will determine bail applications from across New South Wales, via AVL, from a virtual court located at the Downing Centre Local Court, or any other location as directed by the Chief Magistrate”, and it “will only hear first instance applications for bail by adult applicants who have been police bail refused”.
A Custody Information Form relating to an accused who will go before the virtual court must be filled out by the NSW police or Corrective Services NSW custody manager. Forms relating to suspects taken into custody after the previous day’s Bail Division cut-off time of 12 pm must be emailed to the division, as well as to police prosecutors and Legal Aid NSW, by 7 am on the day of appearance.
The Custody Information Form must be updated and resent to the relevant parties every hour from 7 am until 12 pm cut-off every day. An accused’s name should not appear on the form unless they’ve completely undergone the charging process, and the person in custody is able to provide the custody manager with instructions regarding their legal representation.
Any accused that misses the cut-off time will be prioritised at the next day’s bail hearings. The legal representatives of those who have missed a day’s cut-off period must notify the registry electronically that their client’s bail application is ready to be processed the following day.
Although custody managers may make requests to the Bail Division for a late hearing after the cut-off time, and any such matter may be dealt with by the registrar and the Bail Coordinating Magistrate at chambers.
Bail applications will be allocated to specific virtual courtrooms based on standard operating procedures and with consultation with the Bail Coordinating Magistrate. The practice note further assures that courtroom allocations can be “reassessed during the day to ensure that all matters are dealt with as expeditiously as is reasonably practicable”.
Virtual bail hearings
Prior to the opening of virtual bail courtrooms, Legal Aid NSW representatives are to provide the court with a list of matters ready to proceed, and this should be updated every time a new bail application is ready to go throughout the day.
For matters being dealt with by a private lawyer or by an Aboriginal Legal Service NSW/ACT legal practitioner, the representative must notify the court registry of their client’s name and that the matter is ready to proceed via email, or other electronic means, as soon as possible and prior to cut-off. The registry will then inform the private representative as to when the matter will be heard.
Court will commence sitting at 9.30 am. After bail applications from the day prior are seen to, the court will then hear applications depending on readiness to proceed.
The court will run on NSW Local Court timings, with morning tea adjournment set for 11.30 am to 12 pm. The lunch adjournment will be from 1 pm to 2 pm. And the court will cease hearings at 4 pm each day.
The prosecution must provide an accused’s legal representative with the NSW police fact sheet and criminal antecedents prior to a hearing. These should too be tendered to the court electronically prior to hearing, and any defence documents to support a bail application must be filed with the registry before court appearance and sent to the prosecution beforehand as well.
“Oral submissions from the prosecution and applicant should not exceed 10 minutes for each bail application,” the practice note outlines. “This does not include reading time for material tendered by either party to the application. The court may allow further time for oral submissions from the parties if the court determines it is in the interests of justice.”
“Any matters that are not reached by 4 pm shall be listed on the next available court day, unless otherwise directed by the court,” the document adds.
Following a bail application being made, a magistrate must then complete a Summary of Reasons for Bail Decision court form afterwards.
The progression of matters
Prior to a bail hearing, if an accused has entered a guilty plea, a magistrate may proceed to sentencing, if the judicial officer determines the court has time, a sentencing assessment report is not required and the accused consents for it to proceed, otherwise the magistrate may hear a bail application or adjourn sentencing to the criminal list of the relevant court.
Following a bail hearing, where an accused enters a plea of not guilty a magistrate may do one of four things.
Firstly, the judicial officer may require the prosecution to provide the accused or their lawyer with the brief of evidence they intend to use in the case against them within four weeks, or adjourn proceedings to the criminal list of the relevant court, with six weeks to provide the brief.
If an accused is before the virtual bail court on domestic violence charges, a magistrate may adjourn the proceedings and fix a hearing date in the criminal list of the relevant court.
If an accused is charged with a matter for which a brief of evidence is not required, a magistrate may adjourn proceedings for mention in the criminal list of the relevant court.
And the fourth option involves whether an accused is charged with a matter that falls under the Early Appropriate Guilty Plea Process (EAGP), and in these cases, the magistrate can order the prosecution to provide a brief of evidence within eight weeks, and adjourn the matter for that same timeframe to the NSW Director of Prosecutions (DPP) list of the relevant court.
Enacted into law in April 2018, the EAGP is a scheme designed to streamline the hearing of serious criminal matters by encouraging defendants to provide early guilty pleas, which do result is shorter sentences, due to sentencing discounts that are applied to the penalties imposed as a result of the utilitarian value that these early pleas hold.
In terms of a bail hearing where an accused enters a not guilty plea, a magistrate may adjourn proceedings for mention in the next criminal list of the relevant court for a plea to be mentioned.
And if an accused requests the matter proceed to sentencing, after an application for release on bail has been refused, this shall not happen unless the judicial officer concludes that there are good reasons to proceed and if to do so, is considered to be “in the interests of justice”.
Bail hearings for the mentally ill
When a magistrate makes orders under the provisions of section 19 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the bail matter is considered as having been dispensed with, and there are no further bail determinations to be made, unless the accused turns up in court, after an assessment of them has been made.
Section 19 of the aforementioned legislation provides magistrates with the ability to recommend a treatment option for defendants who are found to be mentally ill or cognitively impaired and therefore, not criminally responsible for their crime and the charges are dropped.
The options open for a magistrate who finds an accused is not to be dealt with via the regular corrections process due to mental illness are to make an order that the individual be detained in a mental health facility for assessment or they may be discharged, unconditionally or with conditions, and placed in the care of another person.
If defendants considered to be mentally ill are then assessed not to be, they must be returned to police custody and appear once more before a virtual bail court.
