Bell CJ outlined that the presumption of innocence is a “fundamental plank in our system of justice”, asserting that no one should be “deprived” of their “liberty unless and until found guilty by a judge or a jury.

His Honour expressed that the refusal of bail can put innocent individuals at risk of enduring incarceration for “a considerable period of time”.

Holding individuals on remand also brings significant financial challenges. According to the Bureau of Crime Statistics and Research, the annual cost of keeping one person in remand in NSW exceeds $105,000, totalling over $600 million each year.

Bell CJ acknowledged that there can never be an “absolute guarantee” that someone released on bail won’t commit another offence during that period.

“Where an offence is committed by a person who is on bail, it is both wrong and unfair to attribute blame for that outcome retrospectively to the judicial officer who granted bail,” His Honour said.

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“To do so involves a profound misunderstanding of the nature of the difficult and complex risk assessment which judges are required to make when hearing and determining bail applications.”

However, this principle is facing growing challenges. As of 30 March 2025, His Honour noted that there are currently 5,732 individuals charged with serious offences who are being held in custody while waiting for their trial.

Bell CJ pointed out that this represents a 20 per cent increase in the number of people in this situation over the past five years.

His Honour noted that the decision to grant anyone bail is not a “risk-free” decision, explaining that it is “never possible” to guarantee a “careful and conscious risk assessment … will always be vindicated”.

“The Bail Act does not allow a grant of bail if the risks, as assessed, on the evidence before the judge, are unacceptable. In some circumstances, additional tests apply. The act necessarily accepts that there will be some risk,” Bell CJ said.

“Over time, having regard to the significant volume of decisions being made, that risk will, on occasion, be realised. On the other hand, there is a risk of doing irreparable harm to individuals ultimately found to be not guilty of any crime by imprisoning them for long periods whilst on remand at what is often a formative time in their life.”

Bell CJ did acknowledge that the passing of the recent bail law amendments has “significantly restricted the circumstances in which bail may be granted”.

The legal profession has raised concerns regarding the scrutiny surrounding these amendments. Last year, 60 prominent legal organisations and bodies sent two open letters to NSW Premier Chris Minns to express their views on this issue.

Within the letter, the legal organisations pleaded for the government to “urgently replace” its planned amendments with prevention measures.

His Honour also acknowledged that while judicial decisions are “not immune from criticisms”, media coverage of bail determinations is “sometimes not informed” by a comprehensive understanding of the “proper appreciation of the evidence before the court”.