Bail Act

Question 1

What is the order of issues to be considered when appearing on a bail application?
(3 - 4 marks)

Answer 1

1) Is the offence one for which there is a right to release under s 21(1) and (2) Bail Act.
2) Is it a show cause offence under s 16B Bail Act?
3) Is there an unacceptable risk in relation to any ‘bail concerns’ under sections 17 and 18 Bail Act?
4) If there are any bail concerns, can the concerns be addressed through the imposition of bail conditions?

Question 2

What are the bail decisions that can be made and under what section of the Act?

Answer 2

Section 8(1)(a) - (d) Bail Act. The decisions that can be made are as follows:

(a) Release the person without bail (note: as per s 9 Bail Act, this can only be made by an authorised police officer)
(b) Dispense with bail for the offence
(c) Grant bail for the offence (with or without the imposition of conditions); or
(d) Refuse bail.

Question 3

What do sections 9 - 11 of the Bail Act deal with?

Answer 3

Who has the power to make various decisions in relation to Bail.

Question 4

What section designates the “duration of bail”?

Answer 4

Section 12

Question 5

What section of the Bail Act governs the imposition of bail conditions generally?

Under what circumstances may a bail authority impose bail conditions generally?

Answer 5

Section 20A Bail Act.

As per s 20A(2), bail conditions may only be imposed if the bail authority is satisfied that the bail condition:

(a) is reasonably necessary to address a bail concern;
(b) is reasonable and proportionate to the offence for which the bail is granted;
(c) is appropriate to the bail concern in relation to which it is imposed;
(d) is no more onerous than necessary to address the bail concern;
(e) is reasonably practicable for the accused to comply with; and
(f) there are reasonable grounds to believe that the accused person is likely to comply.

Question 6

What section or sections govern a court’s general limits on the right to release?

What are those limits?

Answer 6

Sections 22 and 22A Bail Act.

Under s 22(1) Bail Act, a court cannot grant, or dispense with bail for the following offences, unless special circumstances exist:

(a) an offence of an indictment for which an appeal is pending; or
(b) an offence for which an appeal is pending from the NSWCCA to the HCA.

Under s 22A(1) Bail Act, a court must refuse bail for designated terrorism offences, unless exceptional circumstances exist.

Question 7

At what time can bail conditions be imposed?

Answer 7

Under section 23(2) Bail Act, bail conditions may be imposed when bail is granted or a bail decision is varied.

Question 8

What are 5 types of requirements that can be imposed as bail conditions?

Where ib the Bail Act can they be found?

Answer 8

Bail conditions can impose the following types of requirements:

1) Conduct requirements
2) Security requirements
3) Character acknowledgement;
4) Accommodation requirements; and
5) Pre-release requirements.

Sections 25 - 30

Question 9

What “requirements” can be imposed as “pre-release requirements”?

Under what section?

Answer 9

Under s 29(1)(a) - (d) Bail Act, the following requirements, and no others, can be imposed as pre-release requirements:

(a) A conduct requirement that requires the accused to surrender their passport;
(b) A security requirement;
(c) A requirement that one or more character acknowledgements be provided; or
(d) An acknowledgement requirement.

Question 10

What section of the Act governs enforcement conditions?

Answer 10

Section 30

Question 11

Do the rules of evidence apply to bail decisions?

Why / why not?

Answer 11

No, s 31(1) Bail Act states the rules of evidence do not apply to a bail authority exercising any of its functions in relation to bail.

Question 12

What must a bail authority that grants bail do/give as soon as practicable after granting bail?

Under what section?

Answer 12

Give the accused a bail acknowledgement under s 33 Bail Act.
Note: an accused person is not entitled to be release under Part 2 of the Bail Act until they sign the bail acknowledgement and give it to bail authority.
The formal requirements of a bail acknowledgement is set out at s 33(4) Bail Act.

Question 13

What sections require notice to be given in relation to the refusal of bail or variation to bail conditions?

Answer 13

Sections 34 and 35 respectively.

Question 14

What sections of the Bail Act and regulations need to be considered if a security condition is imposed?

Answer 14

Sections 26, 36, Part 9 (ss. 82 - 88), Schedule 2 and

Rules 32 - 39 Bail Regulations.

Question 15

What sections of the Bail Act and regulations need to considered if a character acknowledgement is required?

Answer 15

Sections 27, 37.

Question 16

What must a bail authority do if it refuses bail?

Under what sections?

Answer 16

Under s 38(1) and (2), a bail authority that refuses bail, or grants bail but imposes bail conditions, must immediately record its reasons for doing so.

Under s 39 Bail Act, a court or authorised justice may issue a warrant of commitment remanding the accused to a correctional facility or other place of security if bail is refused or revoked.

Question 17

When may a court or authorised justice issue a warrant of commitment?

Answer 17

Under s 39(1) - (3) Bail Act, a court or authorised justice may issue a warrant of commitment if:

(1) bail is refused or revoked;
(2) a person granted bail refuses to sign a bail acknowledgement; or
(3) a person granted bail has failed to comply with a pre-release requirement of a bail condition.

Question 18

What section applies to a detention application made by the Crown?

Answer 18

Section 40

Question 19

Outline the process of a detention application by the Crown.

Answer 19

Under s 40(1) Bail Act, a decision to grant or dispense with bail is stayed if:

(a) a bail decision, other than a bail decision under s 54, has not previously been made by a court or authorised justice; and
(b) the Crown immediately:
(i) informs the court or authorised justice that a detention application is to be made to the Supreme Court; and
(ii) provides the cour / authorised justice a copy of written approval from the DPP of authority to make a detention application if bail is granted or dispensed with.

Under s 40(2), the stay has effect until varied, affirmed or substituted by the SC, the application is withdrawn by the Crown or 4:00 pm on the third business day after the decision was made.

Question 20

What section of the Act outlines the limitations on adjournments when bail has been refused?

Answer 20

Section 41

Question 21

What must happen if a person granted bail remains in custody for more than a week because of a failure or inability to comply with a bail condition?

Answer 21

Notice must be given to the court in accordance with s 42 Bail Act.

Question 22

What sections of the Act govern a police officer’s power to make bail decisions?

Answer 22

Sections 43 - 47 inclusive.

Question 23

What bail decisions may a police office make?

Can all police officers make those decisions?

Answer 23

Under s 43(2) Bail Act, a police officer (at or above the rank of sergeant) may make the following bail decisions:

(a) Release the person without bail;
(b) Grant bail (with or without the imposition of bail conditions); or
(c) refuse bail.

No. As per s 43(1)(a) and (b), the police officer must be:

• at or above the rank of sergeant; or
• be in charge of the police station for the time being.

Question 24

When can a police officer not make a bail decision?

Answer 24

As per s 43(3) Bail Act, if:

(a) a bail decision has already been made by a court or authorised justice; or
(b) the accused has already made a first appearance for the offence and bail has been dispensed with.

Also, under s 43(4) Bail Act, a police officer cannot grant bail or release a person without bail if the accused has been arrested under a warrant to bring the person before a court for sentencing, unless, as per s 43(5), exceptional circumstances exist.

Question 25

What are the 3 types of bail applications that can be made before a court or authorised justice?
Under what section?

Answer 25

Under s 48 Bail Act, a court or authorised justice can hear a:

(a) release application (which can only be brought by the accused);
(b) detention application (which can only be brought by the prosecutor); or
(c) variation application (which can be brought by an interested person).

Question 26

What sections govern release, detention and variation applications?

Answer 26

Sections 49 - 51 inclusive.

Question 27

What section outlines whether an authorised justice may vary a court decision?

Answer 27

Section 52.
It states that an authorised justice may vary a bail decision of a court on a variation application only if the variation application relates to bail conditions that are reviewable by a justice.

Question 28

Under what section may a court or authorised justice make or vary a bail decision without a bail application?

Answer 28

Section 53

Question 29

Can a court or authorised justice make or vary a bail decision solely on the basis that the accused remains in custody because a bail condition has not been complied with?

If so, under what section?

Answer 29

Yes.

Section 55 Bail Act.

Question 30

What might a court do if an accused is so intoxicated at a bail application that he/she cannot properly give instructions to his/her client?

Answer 30

Section 56 provides the court with a discretion to defer a bail decision if the accused is intoxicated.

Question 31

What are the restrictions on the powers of a court or authorised justices under the Bail Act?

Answer 31

They are outlined at sections 57 - 58 Bail Act.

The restrictions are:

1) The Local Court must not vary a bail condition imposed by a higher court, unless the prosecution and accused consent to the variation.
2) An authorised justice must not vary a bail condition imposed by a court if the court has directed that the condition is not to be varied by an authorised justice.

AND, under s 58(1) Bail Act, an authorised justice must not vary enforcement conditions or impose new enforcement conditions.

There are further limitations at sections 68 - 70 of the Bail Act that further restrict the powers of an inferior court when the proceedings are before a superior court.

Question 32

Where are the specific powers to the Local, District, Supreme Court and Court of Criminal Appeal located?

Answer 32

At sections 64, 65, 66 and 67 of the Bail Act respectively.

Question 33

Under what section is the requirement for bail applications to be dealt with expeditiously?

Answer 33

Section 71 Bail Act

Question 34

Under what section and on what discretionary grounds may a court refuse to hear a bail application?

Answer 34

Under s 73(1) Bail Act if satisfied that the application is:

• frivolous or vexatious; or
• without substance and otherwise has no reasonable grounds of success.

Or, under section 74 Bail Act, if it has already heard a release application and receives another release application.

Question 35

What Part (and sections) relates to enforcement of bail requirements?

Answer 35

Part 8

Sections 77 - 81 Bail Act

Question 36

What section allows a police officer to take action in response to an actual or suspected failure to comply with a bail condition?

Answer 36

Section 77 Bail Act.

Question 37

Is it an offence to fail to appear before a court in accordance with a bail acknowledgement?

Are there any exceptions

Answer 37

Yes. Under s 79 Bail Act.

The exception is that it is only an offence to fail to appear ‘without reasonable excuse’. The onus is on the accused to establish that they had a reasonable excuse.