The Bail Act 2013 commenced on the 20th May 2014. The Act incorporates a risk management approach to the determination of bail. Bail determinations are based on the use of the unacceptable risk test. The Act abolishes presumptions in relation to bail based on the offence charged.
Section 17 of the Act provides that an ‘unacceptable risk’ is an unacceptable risk that an accused person, 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
Application of the test
If there is no unacceptable risk
= bail should be granted unconditionally
If there is unacceptable risk that can be sufficiently mitigated by bail conditions
= conditional bail should be granted
If there is unacceptable risk that cannot be mitigated
= bail should be refused
When a bail authority is determining bail they are to consider the following matters, and only the following matters, in deciding whether there is an unacceptable risk:
• The accused’s background, including criminal history, circumstances and community ties,
• The nature and seriousness of the offence,
• The strength of the prosecution case,
• Whether the accused person has a history of violence,
• Whether the accused person has previously committed a serious offence while on bail,
• Whether the accused person has a pattern of non-compliance with bail acknowledgements, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,
• The length of the time the accused person is likely to spend in custody if bail is refused,
• The likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
• If the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before the court, whether the appeal has a reasonably arguable prospect of success,
• Any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
• The need for the accused person to be free to prepare for their appearance in court or to obtain legal advice,
• The need for the accused person to be free for any other lawful reason.
‘Serious offence’ is not specifically defined in the Act. However, section 17(4) provides some assistance when determining whether an offence is a ‘serious offence’. The following matters should be considered:
• Whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument,
• The likely effect of the offence on any victim and the community generally,
• The number of offences likely to be committed or for which the person has been granted bail or released to parole.
Upon an accused person appearing in court in custody the prosecutor can make a detention application for the refusal or revocation of bail for an offence (section 50). In such circumstances, submissions should be made by the prosecutor and defence in relation to whether an unacceptable risk exists, and if so, whether it can be mitigated by bail conditions.
It is important to note that a court or authorised justice is not to hear a detention application unless satisfied that the accused person has been given reasonable notice of the application by the prosecutor.
Alternatively, the defence can make a release application for bail for the offence to be granted or dispensed with (section 49). In such circumstances, submissions should be made by the defence and prosecutor as to any unacceptable risk exists and bail conditions that could be imposed to mitigate the risk. A prosecutor may oppose a release application without making a detention application.
Restrictions in the Making of Bail Applications
Section 74 of the Act provides that a release application cannot be made after bail was previously refused for the offence, unless there are grounds for a further release application.
The grounds for a further release application are:
• The person was not legally represented when the previous application was dealt with and the person now has legal representation,
• 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,
• Circumstances relevant to the grant of bail have changed since the previous application was made,
• The person is a child and the previous application was made on the first appearance for the offence.
Right to Release
Section 21 of the Act provides that there is a right to bail in some instances. The ‘right to bail’ involves a right to be released without bail, for bail to be dispensed with or for bail to be granted with or without bail conditions.
The right to bail exists for the following offences:
• A fine only offence,
• An offence under the Summary Offences Act 1988, other than an ‘excluded offence’,
• An offence that is being dealt with by conference under the Young Offenders Act 1997.
It is, however, important to note that section 21(4) provides that an offence is not an offence with a right to release if the accused person has previously failed to comply with a bail acknowledgement, or a bail condition, of a bail decision for the offence.
Each of the following offences under the Summary Offences Act is an ‘excluded offence’:
• An offence of obscene exposure (section 5) if the person has previously been convicted of an offence under that section,
• An offence of violent disorder (section 11A) if the person has previously been convicted of an offence under that section or of a personal violence offence,
• An offence relating to knives and offensive implements (section 11B, 11C or 11E) if the person has previously been convicted of an offence under any of those sections or of a personal violence offence,
• An offence of custody or use of laser pointer in public place (section 11FA),
• An offence of loitering by convicted child sexual offenders near premises frequented by children (section 11G).
Restrictions to Conditions
Section 24 of the Act provides the following:
• A bail condition can be imposed only for the purpose of mitigating an unacceptable risk,
• Bail conditions must be reasonable, proportionate to the offence for which bail is granted, and appropriate to the unacceptable risk,
• A bail condition is not to be more onerous than necessary to mitigate the unacceptable risk.
However, this section does not apply to ‘enforcement conditions’.
Under section 25 of the Act, bail conditions can impose conduct requirements on an accused person. A ‘conduct requirement’ is a requirement that the accused person do or refrain from doing anything.
An enforcement condition is a bail condition that requires the person granted bail to comply with specified kinds of police directions which are given for the purpose of monitoring or enforcing compliance with an underlying bail condition.
An enforcement condition can only be imposed by a court and only at the request of the prosecutor in the proceedings.
Section 30(5) provides that an enforcement condition can only be imposed if the court considers it reasonable and necessary in the circumstances, having regard to the following:
• The history of the person granted bail (including criminal history particularly history involving serious offences or a large number of offences),
• The likelihood or risk of the person committing further offences while at liberty on bail,
• The extent to which compliance with a direction of a kind specified in the condition may unreasonably affect persons other than the person granted bail.
Section 28 of the Act provides that a bail condition imposed by a court or authorised justice on the grant of bail can require that suitable arrangements to be made for the accommodation of the accused person before he or she is released on bail.
An accommodation condition can only be imposed if the accused person is a child.
The court responsible for hearing bail proceedings must ensure that a matter where an accommodation condition is imposed is re-listed for further hearing at least every 2 days until the accommodation requirement is complied with. The court may direct an officer of a Division of the Government Service (FACS) to provide information about action being taken to secure suitable arrangements for accommodation of the accused person.
Under section 26 of the Act, a bail condition can require security to be provided for compliance with a bail acknowledgement. This includes an agreement for the accused person or an acceptable person to forfeit a specified amount of money or a requirement that a specified amount of money be deposited with the bail authority.
Section 26(5) provides that a security requirement can only be imposed for the purpose of mitigating an unacceptable risk that the accused person will fail to appear at any proceedings for the offence.
It should be noted that a bail authority is not to impose a security requirement unless the imposing of one or more conduct requirements is not likely to achieve the same purpose.
Deferral of Bail Determinations
Section 56 of the Act provides that a court or authorised justice may defer making a bail decision if an accused person is an ‘intoxicated person’. In such cases, the court or authorised justice may adjourn the hearing for not more than 24 hours, and remand the accused person in custody.
Intoxicated person is defined in the definitions section of the Act. An intoxicated person means a person who appears to be seriously affected by alcohol or another drug or a combination of drugs.
Variation of Bail
Under section 51 of the Act, an application can be made to vary bail. A variation application can be made by the accused person, the prosecutor, the complainant for a domestic violence offence or the person in need of protection of an ADVO.
The Act does not restrict the timing of a variation application. However, reasonable notice must be given of the application to the accused person if made by another person than the accused. If an application is to be made by the accused person, a complaint in a domestic violence offence or a PINOP in an ADVO, reasonable notice must be given to the prosecutor.
It is important to note that a Local Court may hear a variation application for an offence if a bail decision for the offence has been made by a higher court (section 64(4)). However, such an application can only be made with the consent of the accused person and the prosecutor (section 57).
Stay of Bail
Section 40 of the Act provides that upon a court or authorised justice granting or dispensing bail for a serious offence on the first appearance the bail is stayed if:
• A police officer or legal practitioner acting for the Crown immediately informs the court or authorised justice that a detention application is to be made to the Supreme Court, and
• A copy of written approval of an authorised officer or the Director of Public Prosecutions to make a detention application to the Supreme Court is provided to the court or authorised justice.
The stay has effect until one of the following occurs:
• The Supreme Court affirms or varies the decision or refuses to hear the detention application,
• A police officer or someone acting for the Crown files notice that the Crown does not intend to proceed with the detention application,
• 4pm on the day that is 3 business days after the day on which the decision was made.