A Guide to the Bail Act 2013

BAIL – NEW SOUTH WALES – BAIL ACT 2013 NSW

BAIL

The concept of bail means those accused of a criminal offence may maintain their freedom while or until the conclusion of their criminal matter. Conversely, if an individual is unable to be granted bail, they will be remanded in prison the matters conclusion and perhaps longer.

THE APPLICANT FOR BAIL

It is not the case that every individual charged with a criminal offence needs to be receive bail.. The police will dictate whether the person requires a bail application at the time the criminal proceedings are brought against them. An accused person will only require bail if they are arrested.

DECIDER OF BAIL

Bail can be granted in a variety of ways, they appear sequentially as follows:

1. POLICE BAIL
   When an individual is arrested, they are be taken to a police station and enter custody. The police station will have an officer in charge of custody. This officer will make the first determination on bail and the conditions of any potential bail.
2. LOCAL COURT BAIL
   If an individual does not receive police bail, the police will then take the individual to the nearest Local Court. This includes weekends and holidays. At the Local Court, the individual will decide whether or not to apply for bail.. If there is no bail application, the individual will effectively be bail refused. The individual will be remanded in prison until their Court date for Hearing or until they apply for bail on a later date.
3. SUPREME COURT BAIL
   If a person has a NSW Local Court application for bail refused in the NSW Local Court, they will then be entitled to apply to the Supreme Court of New South Wales for Supreme Court Bail.
4. COURT OF CRIMINAL APPEAL BAIL
   If the Supreme Court of NSW refuses bail, the final application for bail can be made to the CCA. Three judges of the Supreme Court will hear a new application and determine whether to grant or refuse bail.

MULTIPLE APPLICATIONS FOR BAIL

Bail in NSW can only be applied for in the same Court once. The Court which has denied bail are required to refuse any applications. The only way to be heard an additional time is to satisfy Section 74 of the Act:

1. the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

2. material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

3. circumstances relevant to the grant of bail have changed since the previous application was made, or

4. the person is a child and the previous application was made on a first appearance for the offence.

An application to the Supreme Court for bail is usually accompanied by a wait time of 6-8 weeks. A Local Court application with a change of circumstance can ordinarily be listed with a few days’ notice.

TESTS FOR BAIL

There are two bail tests which apply (there is a helpful flowchart at Section 16 of The Act):

1. The unacceptable risk test, and
2. The show cause test.

THE UNACCEPTABLE RISK TEST

The unacceptable risk test is found in Section 17 of the Act. The unacceptable risk test requires the consideration of the following risks before granting a person bail:

1. Whether the person will fail to appear at Court or leave the jurisdiction (this is commonly referred to as “risk of flight”);
2. Whether there is a risk that the person will commit a serious offence if they are free;
3. Whether the person will endanger the safety of victims, individuals or the community; and
4. Whether the person will interfere with witnesses or evidence.

In almost all cases, one or two above are relevant considerations. A risk alone is not a good enough reason to refuse a person bail. The Prosecution must satisfy that the risk amounts to an “unacceptable risk”. If the Prosecution can do this a person will be bail refused.

These risks can be mitigated by proposing bail conditions.

WHAT BAIL CONDITIONS CAN BE IMPOSED?

A variety of conditions can be placed on a person by the Court to grant them bail. The conditions imposed will usually be dictated by the circumstances of the matter, circumstances of the accused and the risks brought up by the alleged offending and history of the accused. Some common bail conditions include the following:

• A condition to reside at a specific address;
• A curfew condition
• A condition requiring the person to report to police;
• A condition prohibiting the person from attending certain locations;
• A condition prohibiting the person from contacting certain persons;
• A condition forbidding the person from entering airports;
• A condition requiring the person forfeits their passport;
• A condition for deposit money as security;
• An alcohol and drug condition; and
• Conditions relating to the use (or non use) of a mobile phone.

THE SHOW CAUSE BAIL TEST

The show cause bail test is an additional test to the “unacceptable risk”. The test applies in certain circumstances.

The show cause test is generally considered to be a more difficult test to overcome. This is because, unlike the “unacceptable risk test”, it requires the arrested person to show the Court why his or her detention is not justified.

WHEN DOES THE SHOW CAUSE BAIL TEST APPLY?

The test applies in the following circumstances:

1. Charged with an offence that has imprisonment for life, such as murder;
2. A serious indictable offence which involves:
3. A serious personal violence offence;
4. Any of the following offences:
   1. Serious indictable offence under Part 3 or 3A of the Crimes Act 1900 (NSW) or under the Firearms Act 1996 (NSW) that involves the use of a firearm;
   2. Indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place;
   3. Indictable offence under the Firearms Act 1996 (NSW) that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm.Any of the following offences:
5. Any of the following offences

1. 1. A serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon;
   2. An indictable offence that involves the unlawful possession of a military-style weapon;
   3. A serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon;
   4. An offence that involves the cultivation, supply, possession, manufacture or production of a commercial quantity under the Drug Misuse and Trafficking Act 1985;
   5. A serious indictable offence that is committed by an accused person: while on bail, or while on parole.

SHOWING CAUSE IN BAIL?

The Bail Act does not provide a list or criteria to show cause. The Court’s have determined to show cause, a person is not required to show special or exceptional circumstances.

Examples showing cause in past cases include:

• custody for the first time (young);
• Prosecution case deemed to be weak;
• Full time custody unlikely if found guilty;
• Medical hardship in custody;
• No unacceptable risks;
• Hardship to third parties if the person is in custody;
• Family support present while on potential bail;
• Seriousness of alleged offending;
• The matter may not proceed for a large amount of time;
• Attendance at a drug rehabilitation.