Bail

Question 1

Is there a common-law right to Bail?

Answer 1

No, there is no common law right to bail

Question 2

What are the three imperatives for the role of bail?

Answer 2

• The Right to general liberty, IE the preservation of the presumption of innocence
• Protection of the community by preventing further serious offending
• Protection of the integrity of the trial process.

Question 3

What are potential consequences for bail refusal?

Answer 3

○ Loss of employment +lasting impact of loss of employment
○ Loss of social security payments
○ Loss of relationships (family and friends)

Question 4

What are the potential consequences of bail grant?

Answer 4

○ Failure to present to court
○ Loss of life
○Tampering of evidence and witnesses

Question 5

What is the relevant legislation that is the authority on Bail in Australia?

Answer 5

The Bail Act (2013)

Question 6

What is the relevant caselaw to cite when discussing the presumption of innocence in regard to the Bail Act 2013 and the repeal of s3(2)?

Answer 6

M v R [2015] NSWSC 138

“The presumption of innocence is, or course, a fundamental premise of the criminal justice system”

Question 7

Does the common-law permit the refusal of bail as punishment?

Answer 7

NO, bail can never be used as a punishment. If it is used as a punishment, it would constitute a serious breach of judicial power.

Question 8

Where the accused is on remand, which section of the Bail act can the accused make a release application?

Answer 8

Bail Act 2013 s49

Question 9

Where the accused is on at liberty, which section of the Bail act can the Prosecutor make a release application?

Answer 9

Bail Act 2013 s50

Question 10

Which section of the Bail Act can you find the offences which the ‘Unacceptable Risk test’ does not apply?

Answer 10

Bail Act 2013 s21

Question 11

What does right to release mean?

Answer 11

○Police can release the person without a bail notice (s9)
○A court or authorised justice can dispense with bail (s10)
○Police, Court or Authorised justice can grant bail (with or without bail conditions (s11)

Question 12

Describe the procedure of the Show Cause requirement

Answer 12

Has the accused person shown cause why their detention is not justified? If yes, apply the unacceptable risk test. If no, Bail must be refused.

Question 13

What section of the Bail Act outlines what offences are ‘Show Cause’ offences?

Answer 13

Bail Act 2013 s16(b)

Question 14

What is a Serious Indictable offence in the context of the Bail Act 2013?

Answer 14

“Has the same meaning in the Crimes Act 1900” - Bail Act

“An indictable offence that is punishable by imprisonment by life or a term of 5 years or more.” -Crimes Act

Question 15

What is the relevant case law to cite regarding the 2-step approach to the ‘show cause’ and ‘unacceptable risk’ test.

Answer 15

DPP (NSW) Tikomaimaleya [2015] NSWCA83

“it is important not the conflate the two tests in show cause matters” [25]

Question 16

What legal principle is revoked with a plea of guilty?

Answer 16

The revocation of the presumption of innocence

Question 17

List matters which may be sufficient to show cause that detention was not justified.

Answer 17

○Low Level offending
○Aboriginally
○Residential Rehabilitation is available
○Appropriate medical treatment is not available in custody
○Accused is terminally ill
○Adjournment period is short or Long
○Mental Illness and Braindamage
○Being young and in custody for the first time
[page 21-22 of Bail Topic PowerPoint]

Question 18

What is the second stage of reasoning in ‘special or exceptional circumstances’ for justifying the decision to grant bail?

Answer 18

The “unacceptable risk test”, by application of the exhaustive list of matters set out in The Bail Act s18