In a rare public statement, the Chief Justice of New South Wales has raised concerns over the number of people being held on remand in the state.

His comments come as Indigenous groups have argued new bail laws in NSW has led to Aboriginal children being locked up for crimes that don't attract jail sentences, reflecting some of Justice Bell's concerns.

"These are cruel, tragic and dangerous laws," Ms Warner said earlier this month. "When you lock children up, you lock them into a life of crime.

"Children represented by ALS are being locked up for crimes that would never attract a jail sentence if convicted, and being exposed to an apprenticeship in more serious offending in custody."

Commenting on the fact that "decisions to grant or refuse bail are regularly the subject of media coverage," Chief Justice Andrew Bell sought to defend judges' bail decisions, noting they are required to weigh up justice for those accused with community expectations.

"Our criminal justice system takes as its starting point the fundamental proposition that an accused person is innocent until proven guilty and, generally speaking, should not be deprived of his or her liberty unless and until found guilty by a judge or a jury," he said.

There has been a push for stronger bail laws across the country, with several jurisdictions strengthening legislation to make bail harder for both juveniles and adults, despite several reports recommending incarceration should only be a last resort.

The Chief Justice said whilst there can never be an "absolute guarantee" that someone on bail will not offend, when they do, "it is both wrong and unfair to attribute blame for that outcome retrospectively to the judicial officer who granted bail".

"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," he argued.

Data from the NSW Bureau of Crime Statistics and Research (BOCSAR) revealed for the March quarter, the NSW adult prison population rose to 13,103. There were 4,244 Aboriginal adults in custody, representing 32 per cent of the total adult custody population—an increase of 14 per cent compared to just a 4.3 rise in non-Aboriginal prisoners since November 2023.

The increased numbers, BOCSAR said, are down to the high number of people being held on remand, i.e. not sentenced.

Seeking to make clear the reasons why decisions are made, the Chief Justice added: "While judges' decisions are not immune from criticism, media reporting of decisions to grant bail is sometimes not informed by a full understanding or proper appreciation of the evidence before the court on any given bail application..."

Stronger bail laws in NSW outraged youth and Indigenous advocates, as well as many in the NSW Labor party, and were labelled a "devastating betrayal of Aboriginal children in NSW" by Aboriginal Legal Service (ALS) NSW chief executive Karly Warner when they were announced last year.

"These laws are going to have a permanent and dangerous effect for NSW communities," Ms Warner said.

"They will increase crime. They are destroying the lives of our children, and communities will experience increased crime as a result."

Earlier this year, the government announced it would extend the 'trial' for three more years, without the planned one-year review.

Overall, there were 5,732 people on remand awaiting trial, Chief Justice Bell said, an increase of approximately 20 per cent over five years.

He argued the pressure on the court system and the "finite" number of resources meant there was no guarantee someone would face trial quickly, resulting in time behind bars without having been found guilty.

"If an accused person held on remand is later found to be not guilty of the offence(s) charged, or if the charges are withdrawn, that person will have been deprived of liberty for what will very often be a considerable period of time," he wrote.

He also noted a person charged with a serious offence may have to wait up to three years before facing trial, whilst also highlighting the financial burden, with taxpayers being charged an average of $105,850 per accused person on remand in NSW per year, equating to over $600 million per year.

"It also carries an irremediable cost to the not insignificant number of accused persons held on remand but who are either not subsequently convicted or, if convicted, who are sentenced for a shorter period than they have been held on remand, or those who would have otherwise been given a sentence to be served in the community...as opposed to a sentence of imprisonment," Chief Justice Bell wrote.

He said the decision to grant anyone bail was not "risk-free," and the Bail Act doesn't allow bail if the "risks, as assessed, on the evidence before the judge, are unacceptable". Nonetheless, the Act accepts there will be "some risk", he added.

"Over time, having regard to the significant volume of decisions being made, that risk will, on occasion, be realised," he wrote.

"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. This assists neither the individual nor the protection of the community."