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The Bail Act

Since the Sydney seige on 15 December, 2014 there has been substantial media attention on the Bail Act, 2013 (“the Act”) and amendments that were put before the NSW State Parliament late last year.

In particular, a number of people have been concerned about the leniency of Courts in granting bail to violent offenders.

Set out below are some of the basic requirements of the Act as it currently stands and information on the proposed changes that are expected to be passed early this year (2015).

What is Bail?

A grant of “bail” is the authority for a person charged with a criminal offence to be at liberty until a Court has determined the guilt or innocence of the person charged, or until the conditions of the alleged offender’s bail are revoked.

What factors does a Court look at when considering whether to grant an Offender bail?

Under the present bail laws, before making any decision regarding bail, a Court must consider whether there are any unacceptable risks in granting bail to the alleged offender.

Unacceptable risks are defined in the Act as a risk that the offender may:-

  1. fail to appear at any future Court proceedings for the offence;
  2. commit a further serious offence;
  3. endanger the safety of victims, individuals or the community; or
  4. interfere with Police witnesses or evidence.

Bail is not a penalty imposed upon a person who is alleged to have committed an offence. Under Australian law (which follows the Westminster system from England), a person who is charged with an offence is presumed to be innocent until the Prosecution establishes beyond a reasonable doubt that the accused person is guilty of the offence charged.

If found guilty of an offence, the accused person will then be sentenced by a Local Court Magistrate or a District or Supreme Court Judge for that offence.

Proposed changes to the Bail Act

Over the last couple of decades there have been many ad hoc changes to bail laws making the system very complicated. The current Act was enacted to simplify the web of ad hoc presumptions that signified the previous bail act. However, adverse media reports have now led to the NSW Government introducing a new Bill, essentially designed to make it harder for certain types of alleged offenders to get bail.

The proposed changes place the onus on the offender to ‘show cause’ why they should not be detained. This test is an additional test which is separate to, and applies regardless of, the “unacceptable risk” test.

The introduction of the new ‘show cause’ requirement means that people accused of certain serious criminal offences (e.g. those punishable by imprisonment for life) will not be granted bail so easily.

The new requirement applies to offences such as child sex offences, serious personal violence offences, certain drug offences, possessing firearms and prohibited weapons, and any serious offences committed whilst the offender is already on bail, on parole or subject to a supervision order.

The new Bill also proposes that the Courts must consider additional matters when applying the unacceptable risk test. These are:-

  1. Whether the accused has a history of compliance or non-compliance with previous grants of bail, AVOs, parole orders or good behaviour bonds;
  2. Whether the accused has any criminal associations;
  3. The conduct of the accused towards the victim and/or victim’s family members after the offence;
  4. If the offence is serious, the Court must consider the views of the victim of the offence or any family member of the victim when considering the safety of the victim, individuals or the community; and
  5. Whether the imposition of bail conditions could reasonably address bail concerns.

The preamble to the Act currently states that the three main principles surrounding the granting of bail to an alleged offender are to be:-

  1. Ensuring the safety of the victims of crime, individuals and the community;
  2. The need to ensure the integrity of the justice system; and
  3. The presumption of innocence and the right of a person to be at liberty.

While some criminal lawyers and the drafters of the 2013 Bail Act have voiced the opinion that it is too soon to evaluate the success of the current bail laws, it appears that the government is pressing ahead with the changes. It is expected that the new Bill will be passed by the NSW State Parliament in early 2015.

If you have any questions regarding your eligibility for bail or your rights in respect of any criminal charges, contact Brazel Moore Lawyers on (02) 4324 7699 to speak to one of our experienced criminal lawyers today.

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