Bail

The Act requires that the question of bail be determined in the accordance with the question of the bail concerns. If the offence is a “show cause” offence, the question of whether cause is shown is determined as a preliminary question. If cause is shown, attention then returns to the bail concerns.

Naturally enough, most criminal proceedings start with the question of bail.

If police elect not to deal with someone by way of a Field Court Attendance Notice, and a decision is made not to release the person to police bail, police are then obliged to bring that person “before an authorised officer or court” within the applicable time period “or, if it is not practicable to do so within that period, as soon as practicable after the end of that period” (s114(4) of the Law Enforcement (Powers and Responsibilities) Act 2002.

The question of whether the person should then be released to bail is determined in accordance with the Bail Act 2013.

The Act requires that the question of bail be determined in the accordance with the question of the bail concerns. If the offence is a “show cause” offence, the question of whether cause is shown is determined as a preliminary question. If cause is shown, attention then returns to the bail concerns.

The bail concerns are listed at s17 of the Act. They require the court to consider whether there “is a concern that an accused person, if released from custody, will:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

S18 of the Act sets out an exhaustive list of matters that can be considered on the question of bail concerns. S19 requires that the court must refuse bail if there is an unacceptable risk, notwithstanding conditions that could be imposed, that the person would do one of the things listed at s17.

If there is no unacceptable risk, s20 requires that the person must be released to bail. S21A requires that the person be released to bail with only the conditions necessary to address the bail concerns identified.

JM

JM v R [2015] NSWSC 978

“First, the Act itself, in its preamble, recognises that the common law presumption of innocence and the general right to be at liberty, has not been ignored by the Parliament, in the Act, but is in fact something which the Parliament has taken into account. A court needs to keep in mind, and have regard to these principles when considering a grant of bail, because as a fundament of the law, they have not been excluded by the terms of the Act. On the contrary, the Parliament has embraced them.”

“As earlier noted, s 18 limits the matters to be taken into account in assessing bail concerns under the Act. Each of the matters is given equal priority. No one matter assumes dominant significance. It is important to note that in s 18(1)(i), the Court is entitled to have regard to the likelihood of a custodial sentence being imposed if an accused person is convicted of the offence, however, that factor is only to be taken into account in considering the existence of a bail concern, being one of the four matters to which reference has been made in [44]. Unsurprisingly, an applicant facing a lengthy jail sentence may be, depending on their personal circumstances, at greater risk of failing to appear at future proceedings.”