Being accused of a drug supply offence in New South Wales is one of the most serious criminal charges that anyone can receive. Supplying prohibited drugs is a criminal offence under NSW law and carries significant legal consequences, including severe penalties and long-term ramifications. Clients and their families ask us often: Can you get bail on drug supply charges in NSW? The answer is short but positive – but it’s not guaranteed.
At Davis & Associates
Our criminal defence lawyers in Newcastle and Forster commonly appear on behalf of drug supply clients. Bail applications in such cases are complex, particularly when the offence is a serious indictable offence under the Drug Misuse and Trafficking Act 1985 (NSW).
This article addresses the way bail is managed in NSW, the specific issues faced in drug supply matters, and the reasons why early, strategic advice is crucial to your defence. It is essential to seek legal advice from an experienced criminal defence lawyer at an early stage of the proceedings to ensure your rights are protected and to develop an effective defence strategy.
Learn About Drug Supply Offences in NSW
Supply of a prohibited drug, under the Drug Misuse and Trafficking Act 1985 (NSW), includes:
- Selling or supplying a prohibited drug, which covers a range of acts such as offering, agreeing, or actually supplying, whether directly or indirectly.
- Coming to an agreement to supply prohibited drugs.
- Supplying a prohibited drug (even if the supply does not actually occur).
- Possession of a sufficiently large amount of a prohibited drug considered under law as “deemed supply”.
The severity of the drug offence charged is subject to:
- The prohibited drug involved.
- The amount, specifically whether it is a small quantity, traffickable quantity, indictable quantity, commercial quantities, or large commercial quantity. The quantity of the drug supplied determines the seriousness of the offence and whether the case is heard in the local court or district court.
- The circumstances of the suspected supply (e.g., organised distribution, supplying prohibited drugs to children, making a profit).
Possessing at least a traffickable quantity of a prohibited drug can lead to a legal presumption of intent to supply, and traffickable quantities and trafficable quantity are key legal thresholds in drug offences.
The most common prohibited drugs and common prohibited drugs involved in NSW drug offences include illegal drugs such as cocaine, heroin, MDMA, and methamphetamine.
Possession for personal use is treated differently from possession for supply, and drug possession is a separate offence from supply prohibited drug offences.
Supplying a large commercial quantity is not a separate offence but carries significantly higher penalties.
The offence charged depends on the quantity of the drug supplied and the surrounding circumstances. Court proceedings may take place in the local court or district court depending on the seriousness of the drug offence and the amount involved.
Due to the considerable maximum sentences (up to life imprisonment for supplying a large commercial quantity), courts treat these cases extremely seriously – including when determining bail.
How Does Bail Operate in NSW?
Bail in NSW is governed by the Bail Act 2013 (NSW). Bail is actually conditional liberty for a person accused of an offence pending the progress of their case through the courts. The bail hearing is a key stage in court proceedings for drug supply offences, where the court determines whether the accused should be released or remain in custody until trial.
In deciding whether or not to grant bail, the court takes into account:
- Whether there is a “show cause” requirement.
- The test of unacceptable risk.
- Possible bail conditions to minimize risks.
The court must be satisfied on the balance of probabilities when considering bail, but in criminal matters, the prosecution must ultimately prove any allegations beyond reasonable doubt.
The “Show Cause” Requirement
Most drug supply offenses automatically trigger the “show cause” threshold under the Bail Act.
This means that, before bail is even considered, the accused must establish why detention is not warranted further. This is a reversal of the usual presumption of freedom.
To explain:
- Supplying a commercial quantity of drugs is invariably in “show cause.” The maximum penalty for supplying a commercial quantity can be life imprisonment, which makes having a strong defence absolutely essential.
- Lower-level supply is not necessarily to raise show cause, but automatic bail is not either.
Examples of circumstances in which cause can be established:
- Weaker elements in the prosecution case.
- Special personal circumstances (illness, family responsibilities).
- Strong evidence of rehabilitation or alcoholism treatment.
- No prior criminal history.
👉 Learn more about facing criminal charges in NSW.
The Unacceptable Risk Test
Even if you do succeed in raising cause, bail will still be released only if the court is satisfied that you do not pose an “unacceptable risk” of:
- Not attending court.
- Committing a serious offence while on bail.
- Placing the safety of victims or the community at risk.
- Interfering with witnesses or the administration of justice.
The court will weigh:
- Your criminal history of previous offences.
- Community connections (family, employment, residence).
- The seriousness of the charges.
- Whether risks can be mitigated by strict bail conditions.
In making this assessment, the court will also consider the surrounding circumstances of the alleged offence, including what a reasonable person in the accused’s position would have known or believed about the person’s possession of the drug.
Bail Conditions for Drug Supply Offences
If bail is granted for drug supply offences in NSW, it is typically with strict conditions such as:
- Residential requirements – living at a fixed address.
- Multiple daily or regular police reports.
- Curfews (home between 8pm and 6am).
- Non-association orders (avoiding co-accused or other people).
- Surrendering of passports to prevent flight risk.
- Sureties – family or friends having money or property to serve as surety.
Failure to comply with conditions of bail can result in immediate arrest and detention.
How Davis & Associates Can Assist with Bail Applications
Drug case bail hearings are high-risk. A failed application can see an accused remain in custody until trial, which could be months or even years down the track.
We do the following at Davis & Associates:
- Determine if your case is show cause-triggering.
- Find compelling arguments and evidence for bail.
- Make compelling submissions and secure character references.
- Secure suitable conditions of bail.
- Attend court urgently, weekends if necessary.
In some cases, alternatives to custody such as good behaviour bonds may be available. Experienced criminal lawyers can help clients facing a drug supply charge to explore all available options.
👉 See more about our criminal law services in Newcastle.
Why Drug Supply Bail NSW Applications are Difficult
Courts are typically reluctant to grant bail for drug supply offenses because:
- Gravity of penalties (increased flight risk).
- Prevalence of the drug crime and concern in society.
- Risk of reoffending on bail.
But bail is not impossible. Judges are routinely granting bail in drug cases – provided a strong case is made by competent defence counsel. However, if an accused is found guilty of a drug charge, the legal consequences can be severe, including lengthy imprisonment.
Case Example: Bail Granted in Serious Drug Case
Bail decisions in drug supply cases depend on the specific circumstances of each case, including whether the alleged offence involved ongoing supply, supply on separate occasions, or the supply of a particular drug. The court may also consider whether the accused received a material reward or financial or material reward for the supply.
While every case turns on its facts, courts have granted bail in drug supply cases where:
- The offender was a first offender.
- There was shown to be strong family support.
- Rehabilitation or treatment programs were being used.
- There were real flaws in the prosecution case.
👉 To get more context, read our article on the burden of proof in criminal law.
Call Davis & Associates
You and your loved one need timely, expert representation if you are charged with supplying a drug in NSW. Bail can be obtained – but only after a solid case is prepared.
📍 Newcastle Office – 69 Cowper St, Wallsend, NSW 2287
📍 Forster Office – Suite 2, 12–16 Wallis St, Forster, NSW 2428
📞 Call us today on 0438 464 410