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Bail act FAQ

  1. When does the Bail Amendment Act 2014 commence?

    28 January 2015

  2. What is the main difference between the Bail Act 2013 and the Bail Amendment Act of 2014?

    The amendments have altered the unacceptable risk test and introduced new provisions in which certain alleged offenders will need to show cause as to why they ought be granted bail.

  3. How has the unacceptable risk test changed?

    The unacceptable risk test under the Bail Act 2013 required the court to consider whether an applicant was an unacceptable risk before turning to a consideration of whether conditions could be imposed to mitigate the risk.  The new unacceptable risk test under the Bail Amendment Act 2014 requires the court to consider whether an applicant poses bail concerns  (including a consideration of the proposed conditions) which result in the applicant being declared an unacceptable risk and refused bail. The prosecution bears the onus of proof for this assessment.

    Given the change in the unacceptable risk test, it is unclear what Supreme Court NSW precedent will remain relevant from bail hearings conducted between the commencement of the Bail Act 2013 and the commencement of the Bail Amendment Act 2014

    However, the following considerations of unacceptable risk are likely to maintain their relevance:

    R v Lago [2014] NSWSC 660 and Dunstan v DPP (1999) 92 FCR 168 - no grant of bail is risk free and that the question is best framed as to whether the court is satisfied that there is any risk sufficient to justify the court denying the accused liberty.

    R v Lago [2014] NSWSC 660 - delay before trial is relevant to the determination of whether the risk is unacceptable.

    R v Morris (SCNSW, Unreported, McCallum J, 20 May 2014) - risk of offending relatively minor and short adjournment meant that the risk was not unacceptable.

    R v Paul (NSWSC, Unreported, Schmidt J, 28 May 2014) - a bail risk assessment conducted shortly before sentence proceedings, does not impact on sentencing discretion.

    R v Rokhzayi [2014] NSWSC 958 - both the seriousness and the nature of the offences are relevant to the assessment of unacceptable risk.

  4. What are the new show cause provisions?

    Section 16A provides that an applicant charged with a show cause offence must show cause why their detention in not justified.  This provision thereby reverses the onus of proof in relation to all show cause offences. If the applicant is able to show cause then the court moves to a consideration of unacceptable risk. The prosecution bears the onus of proof for this assessment.

  5. Do the show cause provisions apply to juveniles?

    No.  Section 16A(3) provides that the show cause provisions do not apply to an applicant who is under the age of 18 years at the time of the offence.

  6. What are the offences to which the show cause provisions apply?

    Section 16B sets out all the offences to which the show cause provisions apply.  A summary follows (please note the section itself should be relied upon rather than the summary).

    • All offences punishable by life imprisonment
    • Serious indictable offences involving either sexual intercourse with a person who is <16yo by a person who is >18yo or the infliction of actual bodily harm with intent to have sexual intercourse with a person who is <16yo by a person who is >18yo
    • Serious personal violence offence, or wounding or grievous bodily harm, if prior conviction of serious personal violence offence
    • Serious indictable offence under Part 3 or 3A Crimes Act or Firearms Act involving use of firearm or military style weapon
    • Indictable offence of possession of pistol/firearm in public place or military style weapon
    • Serious indictable offence under the Firearms Act that involves acquiring, supplying or manufacturing pistol/firearm
    • Serious indictable offence under Weapons Prohibition Act that involves buying, selling or manufacturing military style weapons or selling on 3 or more separate occasions any prohibited weapon
    • Drug Misuse and Trafficking Act - possession, supply, cultivation, manufacture, production of commercial quantity
    • Criminal Code – possession, supply, cultivation, manufacture, importation, exportation of commercial quantity
    • Serious indictable offence committed by an accused while on bail or parole (eg. serious indictable offences under Crimes Act  s.58 Assault Police, s.59 AOABH, s.93C Affray, s.117 Larceny, s.154F SMV, s.195 Damage property and under Crimes (Domestic and Personal Violence) Act s.13 Stalk/Intimidate)
    • Indictable offence, or offence of failing to comply with supervision order under Crimes (High Risk Offenders) Act, committed by accused whilst subject to supervision order made under same act
    • Serious indictable offence of attempting to commit offence mentioned in 16B
    • Serious indictable offence of assisting, aiding, abetting, counselling, procuring, soliciting, being accessory to, encouraging, inciting, conspiring to commit offence mentioned in 16B.
  7. What is a bail authority?

    The act defines a bail authority at section 4 as a police officer, an authorised justice or a court.

  8. Is the court still required to take into account the presumption of innocence and the general right to liberty once the Bail Amendment Act 2014 commences?

    The presumption of innocence and the right to liberty are matters that the court must take into account by virtue of the common law.  The Bail Act 2013 legislated in section 3(2) that a bail authority must expressly consider the presumption of innocence and the right to liberty in each bail decision made.  The Bail Amendment Act 2014 removes this requirement.  Instead they are matters referred to in the preamble as matters to which Parliament has had regard in enacting the Act, including also the the need to ensure the safety of victims of crime, individuals and the community and the need to ensure the integrity of the justice system.

  9. Unacceptable Risk of what?

    Section 19 provides that a bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns, that there is an unacceptable risk that if released from custody the applicant 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.
  10. What is a bail concern?

    Section 17 provides that a bail concern is a concern that an applicant, 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.
  11. How does the court assess whether there is a bail concern?

    Section 18(1) provides an exhaustive list of the only matters that can be considered in assessing whether an applicant is a bail concern.   A summary of the relevant matters follows:

    • Person’s background, including criminal history, circumstances and community ties
    • Nature and seriousness of offence
    • Strength prosecution case
    • Whether history of violence
    • Whether prior serious offence on bail
    • Whether history compliance or non-compliance bail, AVO, parole, good behaviour bonds
    • Whether criminal associations
    • Likely time spent in custody
    • Likelihood custodial penalty
    • If on appeal, whether reasonably arguable prospects of success
    • Vulnerability or needs due to ATSI, cognitive or mental health impairment
    • Need to prepare case & legal advice
    • Need for liberty for any lawful reason
    • Conduct towards victim or family member after offence
    • Views of victim or family member to extent relevant to endangering safety victim, individual, community
    • Bail conditions that could be imposed to address bail concerns
  12. If there is no unacceptable risk, can the court impose bail conditions?

    Yes.  If the court determines that there is no unacceptable risk, the bail authority must release the person but can do so either by way of grant of bail (with or without conditions), release without bail or the court may dispense with bail: section 20.  However, bail conditions can only be imposed if the bail authority has identified bail concerns: section 20A.

  13. If there are no bail concerns, can the court impose bail conditions?

    No.  Section 20A provides that bail conditions can only be imposed if the bail authority is satisfied that there are identified bail concerns.

  14. Is there a limitation on the court’s power to impose bail conditions?

    Yes. Section 20A provides that a bail authority may only impose a bail condition if it is satisfied that:

    • it is reasonably necessary to address a bail concern, and
    • it is reasonable and proportionate to the offence, and
    • it is appropriate to the bail concern identified, and
    • it is no more onerous than necessary to address the bail concern identified, and
    • it is reasonably practicable for the applicant to comply with, and
    • there are reasonable grounds to believe that it will be complied with by the applicant.
  15. If there is an unacceptable risk, does the court have to refuse bail?

    Yes, by virtue of section 19(1).

  16. If there is a bail concern, does the court have to refuse bail?

    No. Section 17 provides for an assessment of bail concerns.  The applicant will only be refused bail if the assessment of bail concerns (including a consideration of the proposed conditions) results in the court concluding that there is an unacceptable risk of the applicant failing to appear, committing a serious offence, endangering the safety of victims, individuals or the community or interfering with witnesses or evidence: s.19.

  17. Is the finding that an applicant has shown cause why their detention is not justified, adequate to establish that there is no unacceptable risk?
    No.  Section 19(3) specifically provides that the fact that the applicant has shown cause why their detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.
  18. Does the Bail Act 2013 preserve the right to release for certain minor offences?

    Yes. Section 21 preserves a right to release for fine only offences and Summary Offences Act offences except if the accused person has a prior of the same type for the following: obscene exposure, violent disorder, knives or offensive implements.  The right to release is lost at first instance for the following offences under the Summary Offences Act: laser pointer and loitering by convicted child sex offender near premises frequented by children.

    In addition, the right to release is lost if the accused person has previously failed to comply with bail for the same offence (s.21(4)).

  19. Has section 30AA under the Bail Act 1978, regarding bail pending CCA appeal, been replicated in the Bail Act 2013?

    Yes.  Section 22 limits a court’s power to grant bail pending CCA appeal unless it is established that special or exceptional circumstances exist.

  20. How do the new show cause provisions of the Bail Amendment Act 2014 impact on the test of special or exceptional circumstances pending CCA appeal?

    Section 22(2) provides that if convicted of a show cause offence, the special or exceptional circumstances will apply to persons awaiting CCA appeal and the show cause provisions will not apply.

  21. Has the law in relation to bail pending District Court appeal changed under the Bail Act 2013?

    Yes.  Section 18(1)(j) of the Bail Act 2013 requires that the court now consider as part of the assessment of bail concerns the question of whether there are reasonably arguable prospects of success of the appeal.

  22. How does the Bail Act 2013 deal with intoxicated persons?

    Section 56 of the Bail Act 2013 gives the court a new discretion to defer a decision on bail if the accused person is intoxicated.  It can only do so for a maximum of 24 hours.

    Section 44 also gives the police the power to defer the making of a bail decision on the basis of intoxication but only if deferral doesn’t cause delay in bringing the person before a court or authorised justice.

    Section 4 defines intoxicated person as a person who appears seriously affected by alcohol or another drug or a combination of drugs.

  23. Has section 22A of the Bail Act 1978, regarding multiple bail applications, been replicated in the Bail Act 2013?

    Yes.  Section 74 of the Bail Act 2013 provides that a court must refuse to hear multiple release or detention applications unless: the accused person was not previously represented, there is new information not presented before, there has been a relevant change of circumstances or the accused is a child whose prior application was on first appearance.

    Please note that the section applies to multiple applications before a court only, not an authorised justice.

    If this hurdle is overcome, section 73 poses a further difficulty as the court may still refuse to hear a further application if it is without substance or has no reasonable prospects of success.

  24. Does the Bail Act 2013 use different terminology to the Bail Act 1978?

    Yes.  The Bail Act 2013 substituted the terminology release application for bail application: section 49.  The prosecution will now make detention applications under section 50 and any interested party can make a variation application under section 51.  An interested party is the accused, the prosecution, the Attorney General, the complainant in a domestic offence or the PINOP in an AVO.  The new section provides standing to the same parties in relation to variation applications as did the Bail Act 1978, except for one notable removal from the new Act, being the Director of Public Prosecutions.

    Bail conditions are referred to with the new terminology of requirement: eg a conduct requirement is a condition to report to the Police Station or not to enter the CBD.

    Bail concern is new terminology which refers to the issues that a court considers when determining whether an applicant is an unacceptable risk of failing to appear, committing a serious offence, endangering the safety of victims, individuals or the community or interfering with witnesses or evidence.

    Show cause is new terminology referring to applicants who are required to show cause as to why their detention is not justified, depending on a number of factors including the offence charged and the nature of the applicant’s criminal record: section 16B.

  25. What changes have been made with regard to bail conditions under the Bail Act 2013?

    Section 20A(2) requires that conditions can only be imposed that are reasonable, proportionate to the offence, and appropriate to the bail concern identified.

    Section 25 provides for conduct requirements which are a condition to do or refrain from doing anything: e.g. report to the police or not to enter the CBD.

    Section 26 provides for security requirements which are a condition that the applicant or other(s) agree to forfeit or deposit money or security.  This section also requires that any condition regarding financial security can only be imposed if the court is of the opinion that the same purpose cannot be achieved by one or more conduct requirements.

    Section 27 provides for character acknowledgements which are a condition that an acceptable person acknowledge that they are acquainted with the applicant and that they regard the applicant as a responsible person likely to comply with bail.  This section also provides that any requirements regarding character acknowledgment can only be imposed if the court is of the opinion that the same purpose cannot be achieved by one more conduct requirements.

    Section 28 provides for accommodation requirements which relate to children only.  A court can require that suitable accommodation be found for children before release to bail.  The court can adjourn the matter for 2 days.  Section 28(5) provides that a court may direct any officer of a Division of the Government Service to provide information about the action being taken to arrange such accommodation.  Whilst neither the Act nor the Regulations define “officer of a Division of the Government Service”, Juvenile Justice or Family and Community Services will be responsible for the provision of this information.  The Act indicates that the Regulations may provide for persons other than children to be subject to an accommodation requirement.  At this stage the Regulations are silent on the issue.

    Section 29 provides that a court can only impose a pre-release requirement in the following circumstances: surrender passport, security requirement, character acknowledgment, child accommodation requirement.

    Section 30 (enforcement conditions) provides that a court can require that the accused comply with police directions regarding bail but only if reasonable and necessary when the court considers the accused’s history, likelihood of further offending and the potential unreasonable affect on others: e.g. drug/alcohol testing and curfew checks.  Please note that this type of condition can only be made by a court and only at the request of the prosecution.

  26. Does the Bail Act 2013 define what an acceptable person is?

    Yes.  A decision as to whether a person is an acceptable person is to be made by the bail authority that imposes the bail condition or the officer or court to whom the bail acknowledgment is given (if no decision was made by the bail authority): sections 26(4) and 27(3).

  27. Do I still have to ask for bail to continue?

    No.  Section 12(1) of the Bail Act 2013  provides that bail only ceases to have effect if it is revoked or if the proceedings have concluded.

  28. Can an authorised justice vary a court imposed bail decision?

    Yes.  Section 52 of the Bail Act 2013 provides that an authorised justice can vary a bail decision by a court if it relates to the following types of conditions: reporting, residential, association and curfew.  But not if the variation is sought at any time before the determination of summary or committal proceedings if the bail condition was imposed by the Supreme Court or at any time after the determination of summary or committal proceedings against the accused person (except regarding days of the week to report and which which police station).

  29. Can the local court hear a variation application to vary bail granted by a higher court?

    Yes.  Section 64 of the Bail Act 2013 provides that the local court can hear a bail variation application of a bail decision made by a higher court, unless the higher court has directed that the condition not be varied by the local court: section 57.  Please note exception to this rule if accused and prosecutor agree as set out in section 57(1).

  30. Does the Evidence Act 1995 apply to bail applications under the Bail Act 2013?

    No.  Hearsay evidence is still admissible on bail applications as it was under the Bail Act 1978.  However section 31 provides that for evidence or information to be taken into account by the bail authority, the bail authority must consider it credible or trustworthy in the circumstances.

  31. What is the standard of proof required for a bail application under the Bail Act 2013?

    The standard of proof is on the balance of probabilities as it was under the Bail Act 1978.

  32. Who bears the onus of proof under the Bail Act 2013 (including amendments under the Bail Amendment Act 2014)?

    The prosecution bears the onus of proof in relation to the unacceptable risk test. 

    However, if the applicant is charged with a show cause offence, then the applicant bears the onus of proof to show cause as to why their detention is not justified.  If this hurdle is overcome, then the prosecution bears the onus of proof in relation to the assessment of unacceptable risk

    The issue of onus of proof and the unacceptable risk test was discussed during the Parliamentary Debates of the NSW Legislative Council on 22 May 2013, when the Honourable Michael Gallacher said:

    Under the Government’s bill, if the prosecution asserts that there is an unacceptable risk associated with granting bail, the prosecution will have to establish the existence of an unacceptable risk.  The standard of proof will be on the balance of probabilities, as is the case under the current Bail Act.” (p.20, 584).

    The position under the Bail Act 2013 follows the common law position in NSW pre: Bail Act 1978: R v Wakefield (1969) 89 WN (Pt 1) NSW 325.  It is also in keeping with Victorian case law on bail: Bail Application of Michael Paterson [2006] VSC 268.

    The second reading speech relating to the Bail Amendment Act 2014 indicated that in relation to the show cause provisions, NSW courts are to be informed by the approach taken in other jurisdictions regarding show cause: 2nd Reading Speech, Legislative Assembly, 13 August 2014, Hansard page 10.

    In Victoria, the accused bears the onus to establish that their detention is not justified but the onus then shifts to prosecution to establish that there is an unacceptable risk: Woods v DPP [2014] VSC 1 [58].

  33. What will an applicant need to establish in order to show cause?

    The Bail Amendment Act 2014 is silent as to how an applicant may show cause.  As the term is undefined, it is arguable that the issue is at large: that is, that the court may consider anything when determining whether an applicant has shown cause.

    The second reading speech relating to the Bail Amendment Act 2014 indicated that in relation to the show cause provisions, NSW courts are to be informed by the approach taken in other jurisdictions regarding show cause: 2nd Reading Speech, Legislative Assembly, 13 August 2014, Hansard page 10.

    In Woods v DPP [2014] VSC 1, Bell J stated:

    …the considerations which may be relevant to showing cause are not specified. Each case must be assessed according to its own facts and circumstances. A particular factor or (more usually) a combination of factors may result in an accused showing cause.

    In DPP v Harika [2001] VSC 237, Gillard J stated:

    …the background of the respondent, his prior convictions, the strength of the case against him, and the history of previous grants of bail, were all relevant. His detention would not be justified if it was established that the risk of repeat offending was extremely remote, that the case against him was weak, that the probabilities were that he would not be sentenced to a term of imprisonment, that the use of violence was completely out of character, and that the possibility of re offending, using a weapon, was remote. In considering the issue of cause, it is necessary to consider the applicant’s past” [63]-[64]

    In Lacey v DPP [2007] QCA 413, the Queensland Court of Appeal held that the strength of prosecution case will become paramount consideration in determining whether an applicant has shown cause.

    However, in Re Asmar [2005] VSC 487, the Victorian Supreme Court held that the primary consideration is whether person will meet conditions and attend court. Strength of the case is merely one of the factors to consider.

    In Van Tongeren v ODPP [2013] QMC 16, the court found that delay, a weak prosecution case and personal factors such as urgent or special medical needs or responsibilities could constitute grounds for an applicant to show cause.

    In Re Magee [2009] VSC 384, the Victorian Supreme Court found that a high risk of relatively minor offending, lack of flight risk, offending that would not injure any member of the public and for which a sentence of imprisonment was unlikely are matters relevant to the determination of whether an applicant has shown cause.

  34. Is there still an offence of failing to appear under the Bail Act 2013?

    Yes.  Sections 79 and 80 recreate the offence of failing to appear without reasonable excuse. The maximum penalties remain the same, in that it attracts the same maximum penalty as the offence for which bail is granted, but any penalty must not exceed 3 years and/or 30 penalty units.

  35. Is the prosecution required to make a detention application in order to oppose an accused person’s release application? And vice versa, is an accused person required to make a release application in order to oppose a prosecution detention application?
    No. The Bail (Consequential Amendments) Bill 2013 amended section 50 to make clear that the prosecution can oppose an application for release without having to make a separate detention application.  Similarly, the accused person can oppose a detention application without having to make a separate release application. 
  36. Have amendments been made to reduce breach action being taken by police for trivial breach allegations?
    Yes. Section 77(3) sets out the matters to be considered by police in deciding whether to take action on a breach of bail.  The non-exhaustive list is as follows: the relative seriousness or triviality of the failure, whether the person has a reasonable excuse, the personal attributes and circumstances of the person (to the extent known by the officer) and whether an alternative course of action to arrest is appropriate in the circumstances.
  37. Does the Bail Act 2013 define serious offence?

    Yes.  Section 18(2) of the Bail Act 2013 provides a non-exhaustive definition of what constitutes a serious offence.  It includes the following:

    • whether the offence is sexual or violent in nature and whether it involved the use or possession of a weapon
    • the likely effect of the offence on the victim or community
    • the number of offences likely to be committed or for which the person has been granted bail or released on parole.
  38. Can a decision to grant bail or dispense with bail be stayed?
    Yes.  Section 40 provides that a bail decision can be stayed if a police officer or prosecutor immediately informs the court that a detention application is to be made to the Supreme Court and provides the court with a copy of the written approval of an authorised officer or the Director of Public Prosecution to do so.
  39. When can a security requirement be imposed?
    Section 26 provides that a security requirement can only be imposed for the purpose of mitigating a bail concern: section 26(5).  Further, a bail authority is not to impose a security requirement unless of the opinion that the purpose for which it is imposed is not likely to be achieved by imposing one or more conduct requirements: section 26(6).
  40. Can a magistrate revoke bail when the accused applies to vary bail?
    Section 51(9) provides that a court cannot revoke bail on a variation application unless the prosecutor requests that bail be revoked.
  41. In what circumstances can a magistrate revoke bail when dealing with an alleged breach of bail?
    Section 78(2) stipulates that bail may be revoked or refused only when the court is satisfied that the person has failed or was about to fail to comply with their bail and, having considered all possible alternatives, the decision to refuse bail is justified.
  42. Can police bail someone from the police station without having arrested them?
    Yes.  Section 43 provides that a police officer can make a bail decision for an offence when the person accused is “present” at a police station.
  43. Can a police officer choose not to arrest someone for breach of bail?
    Yes.  Section 77(1) sets out the actions that can be taken by a police officer regarding a failure to comply with bail.  Section 77(1)(a) says one of the options is to decide to take no action regarding the failure.  Section 77(1)(b) provides that they can choose to issue a warning.  Other options available to the police are to give notice to appear in court or a Court Attendance Notice if the failure is an offence: section 77(1)(c) and (d).
  44. Can a police officer grant bail to an accused arrested on a section 25(2) warrant for sentencing?
    Yes, but only if the officer is satisfied that exceptional circumstances justify the grant of bail: section 43(4) and (5).  Please note that this does not apply to other types of bench warrants.
  45. Does a bail authority have to give reasons for a bail decision?

    Yes.  Section 38(1) provides that a bail authority that refuses bail must immediately record the reasons for the refusal including (if bail was refused because of an unacceptable risk) the unacceptable risk or risks identified.

    Section 38(2) provides that a bail authority that imposes bail conditions must immediately record the reasons for not granting unconditional bail and the bail concern or concerns identified.

    The reasons for imposing security or character acknowledgements must also be identified: section 38(3).

    Specifically, if an accused requests certain bail conditions be imposed, and different conditions are imposed, the bail authority must record reasons for imposing the other conditions: section 38(4).

    Please note that these requirements for reasons apply to a court, authorised justice and police officer making a decision regarding bail.