Bail Flashcards
Bail decisions that may be made - s 8 and Sch 1
s 8(1)(a) - releasing an offender without bail.
s 8(1)(b) - dispensing with bail.
s 8(1) (c) - granting bail (with or without conditions
s 8(1)(d) - refusing bail.
s 8(3) and Sch 1 - bail decisions may also be made in respect of persons who are not accused of any offence.
Duration of bail — s 12
s 12(1) - deemed to continue until either it is revoked, or the substantive proceedings are concluded.
s 6 - defines “conclusion of proceedings”, as (i) disposition of the proceedings; or (ii) when a person has been convicted and sentenced for an offence.
Bail applications that may be made - ss 48 - 52
s 49 - a release application, which may be made by the accused for bail to be granted or dispensed with.
s 50 - a detention application, which may be made by the prosecutor under s 50 for the refusal or revocation of bail or for the grant of conditional bail.
s 51 - a variation application, which may be made by any “interested person” as set out in s 51 for a variation in bail conditions [i.e. domestic violence complainant], defined under s 51(3). Where a bail condition imposed by a higher court is the subject of a direction that it not be varied, the consent of both the accused and the prosecutor for the condition is required before any variation is made by the Local or Children’s Courts: s 57; see also s 68(2A). No specific time frame is provided; however, reasonable notice of the application is required: s 51(5) and (7). In determining a variation application, a court must not revoke bail unless this is requested by the prosecutor: s 51(9).
s 16 - set out that bail decisions can be:
- “conditional release” - bail with conditions
- “unconditional release” - release without bail or dispensing with bail or bail without conditions.
Power to hear bail application - ss 61 - 64
s 61 - proceedings for the offence are pending in that court.
s 62 - the court has convicted the person of the offence and an appeal against the conviction or sentence is pending in another court but the person has not yet made their first appearance before the other court.
s 63 - the application is for the variation of a bail decision made by the court.
s 64 - sets out powers specific to the Local Court (which includes where relevant the Children’s Court and the Drug Court) including a a variation application where a bail decision has been made by a higher court (although pursuant to s 57(1), where a higher court has imposed a bail condition that it has directed is not to be varied, such a condition may only be varied with the consent of the accused and the prosecutor): s 64(4).
Jurisdictional issues and restrictions on the Local Court - ss 68 - 70
The Local Court does not have jurisdiction to hear bail applications where:
s 68(1) - a person has made their first appearance before the District or Supreme Courts [subject to exceptions in s 68(2) - arrested on a warrant or remitted or, 68(2A) - accused and prosecutor consent or breaches bail conditions imposed by DC or SC and is brought before the court [s 78]]
s 69(1) - a person has appeared before the Supreme Court for a bail application, although the Local Court can hear a further bail application if: the substantive matter is still before the Local Court, and the person appears, and the court is satisfied special facts or circumstances justify hearing the bail application.
s 57(1) - a higher court bail decision directs that bail not be varied, in these circumstances bail may be varied by the Local Court if both parties consent.
Bail decision on first appearance upon court’s own motion - ss 53 - 56
s 53 - a court may, of its own motion, grant bail to a person on the first appearance even if a release application is not made. This power is discretionary and is only to be exercised to benefit the accused. Does not apply to “show cause” offences unless a bail application is made. May only be exercised to benefit the accused.
s 54 - a court has a discretion to refuse bail when an accused is brought before the court on a first appearance and no bail decision has been made or bail refused and no bail application has been made.
s 55 - the court has the power to conduct a hearing to vary bail conditions without an application, which may occur on the court’s own motion (or at the request of the accused or a police officer). The court may only review the existing bail, not the decision whether or not to grant bail. Accordingly court may only affirm the existing bail decision (as to the conditions of bail), or vary the bail decision, but not to revoke or refuse bail.
s 56 - the court may defer making a bail decision where the person is intoxicated.
Applications to be dealt with expeditiously - ss 71 - 72
s 71 - applications to be dealt with expeditiously.
s 72 - an application by an accused on their first appearance for a release or variation application in the substantive proceedings for an offence must be heard. A court is not to decline to hear the application because notice has not been given to the prosecutor, but may adjourn the hearing in order to enable notice to be given to the prosecutor if this has not occurred and the court considers it necessary in the interests of justice
Rules of evidence and standard of proof - ss 31 - 32
s 31 - rules of evidence to not apply, but does not apply to proceedings for an offence in relation to bail or forfeiture of security.
s 32 - standard of proof is “on balance of probabilities”, but not in relation to offence in relation to bail.
Test to be applied - ss 16, 16A, 16B, 17, 18, 19 and 22A.
Step 1 (a):
ss 16, 16A and 16B - a “bail authority must determine if the person is charged with a “show cause” offence. If yes, the Flow Chart 1 from s 16 applies. If there is a dispute as to whether the offence is a show cause offence, the onus is on the prosecution to establish the criteria under s 16B. If charged not with a “show cause” offence, the bail authority determines bail in accordance with Flow Chart 2 in s 16, the “unacceptable risk” test.
s16(1) - a bail authority must refuse bail unless the accused shows cause why his or her detention is not justified [see JM v The Queen [2015] NSWSC 978 at [32] - [43] for principles to be applied]. Moukhallaletti v DPP (NSW) [2016] NSWCCA 314 at [50]–[56] outlines the basic principles:
- Show cause question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].
- Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act.
- There will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9].
- Cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63].
- It is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act.
- One can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions.
s 16A(2) - if the accused can show cause, then the bail authority must apply the unacceptable risk test.
s 16B - exhaustively lists “show cause” offences. A “serious indictable offence” is defined in s 4 Crimes Act 1900 to mean “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”. It also includes assault occasioning actual bodily harm (s 59 Crimes Act) and stalking/intimidation (s 13 Crimes (Domestic and Personal Violence) Act 2007).
Step 1(b):
s 22A - a bail authority must refuse bail, unless it is established that “exceptional circumstances” exist when an accused is charged with terrorist related offence and this test applies in instead of a show cause offence.
Factors found to constitute exceptional circumstances in the context of a bail application have been:
- the youth of an accused: NK at [34], [40].
- the strength of the Crown case (where that may be sensibly assessed).
- the question of delay to committal and/or trial.
- principles of parity (insofar as they are applicable to a bail application): DPP v Cozzi (2005) 12 VR 211 at [22].
Step 2:
If a person charged does show cause, establishes exceptional circumstances exist, or if they are not charged with a show cause offence, the unacceptable risk test applies [Flow Chart 2 in s 16(3)].
s 17 - a bail authority must assess any bail concerns associated with the accused. A bail concern is defined in s 17(2) to mean that a bail authority has a concern that the accused, if released from custody, will:
- fail to appear at any proceedings for the offence, or
- commit a serious offence, or
- endanger the safety of victims, individuals or the community, or
- interfere with witnesses or evidence.
s 18 - in making an assessment of a bail concern under s 17 a bail authority is to consider only the matters listed in s 18(1). s 18(2) provides a list of matters that are to be considered in deciding the seriousness of an offence but the matters that can be considered are not limited.
s 19 - if, after making an assessment of any bail concerns, including what bail conditions may be imposed, the bail authority is satisfied that there is an unacceptable risk of all or any of the four criteria listed in s 19(2), which are he same as in s 17(2) bail must be refused. That an accused has shown cause under s 16A that his or her detention is not justified is not relevant to a determination of whether there is an unacceptable risk: s 19(3).
Offences carrying a right to release - s 21
s 21(1) - the court may make only the following bail decisions for offences with a right of release:
- to release the person without bail
- dispense with bail.
- grant bail (with or without conditions)
Division 2 of the Act (Unacceptable risk test - all offences) applies to right to release offences subject to s 21(1): s 21(5).
s 19(4) - provides that bail cannot be refused for an offence for which there is a right to release.
s 21(2) - list right to release offences.
s 21(4) - a right to release no longer applies to an offence where an accused has previously failed to comply with a bail acknowledgment or a bail condition forming part of a bail decision for the offence.
Reasons to be recorded - ss 34 and 38
s 38 - requires that the reasons for refusing bail or imposing bail conditions be recorded in the manner specified.
s 34 - a person who is bail refused must, as soon as practicable, be given a written notice setting out the “terms of the decision” and information regarding the review or variation of the decision required by the regulations.
Procedure for conditional release - ss 20, 20A, 23-30
s 20 - subject to Pt 3 Div 1A and Div 2A, that if there are no unacceptable risks with respect to an accused, the bail authority must:
- grant bail (with or without conditions)
- release the person without bail, or
- dispense with bail.
s 20A(1) - conditions can only be imposed if a bail authority is satisfied that there are identified bail concerns.
s 20A(2) - outlines conditions which can be imposed.
s 23 - allows for conditions to be imposed when granted or varied.
s 25 - conduct requirements in subjecting the accused doing or refraining from doing anything [i.e. not to contact or approach certain persons].
s 26 - security [i.e. payment of money into court], but only if the purpose cannot be achieved by conduct conditions [s 26(6)]. This is a form of pre-release requirement. See s 36 - information to be provided about bail security agreements, and ss 82 - 88.
s 27 - character acknowledgement by a person of standing, but only if the purpose cannot be achieved by conduct conditions [s 27(4)]. See s 37 - information to be provided about character acknowledgement.
s 28 - accomodation requirements, only if a child or for the purpose of being admitted to a rehabilitation facility [s 28(3)(a) and (a1) or as (b) authorised by regulations. If in relation to child must be re-listed every 2 days until requirement complied with [s 28(4)]. This is a form of pre-release requirement [s 29].
s 29 - outlines the pre-release requirements, which must be complied with before the person is released [i.e. such as surrender passport].
s 30 - may include enforcement conditions for the purpose of monitoring or enforcing compliance and can be enforced by court and at request of prosecutor [s 30(3)] [i.e. testing for drugs or alcohol].
Procedure where bail is refused - ss 16A, 22A, 19, 34, 38 and 54.
Bail can only be refused where the court is:
- s 16A(1) - satisfied that cause has not been shown, where the relevant offence is a show cause offence).
- s 22A(1) - not satisfied that exceptional circumstances, where the relevant offence is a terrorism-related offence, or
- s 19(1) - following an assessment of bail concerns, that there is an unacceptable risk.
When bail is refused, the court must:
- s 38(1) - immediately record the reasons for refusing bail, including (if bail was refused because of an unacceptable risk) the unacceptable risk or risks identified.
- s 34(1) - give, as soon as practicable, a written notice setting out the “terms of the decision” to the person who is bail refused.
- s 54 - a court has a discretion to refuse bail when an accused is brought before the court on a first appearance and no bail decision has been made or bail refused and no bail application has been made.
Limitations on the length of adjournment where bail is refused - s 41
s 41 - if refused and unless the accused consents, matter can only be adjourned by Magistrate for no more than 8 clear days, unless exceptions in s 41(2) apply.
Multiple applications for release following a decision to refuse bail - s 74
s 74 - a further release is not permitted unless there are grounds to make another application. The grounds are set out in s 74(3) [release] and 74(4) [detention]. What may amount to a change of circumstances in an individual case is likely to vary from case to case; it is a question of fact and degree: R v BNS [2016] NSWSC 350 at [45].
