SPECIALIST ADVICE ON RESOLVING BAIL MATTERS

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Court is fully empowered to enlarge the accused on bail subject to the provisions regarding the grant of bail. Thus, when a bail application is filed by an accused appearing in pursuance to a summons, the Magistrate has to pass a judicial order on the bail application, as he is discharging a judicial function while committing the case. When a judicial order has to be passed, the Magistrate has to apply his mind and pass an order and he is not expected to pass a mechanical order without going into the merits of the case but has to pass an order in accordance with the law regarding the grant of bail. Thus, a distinction has to be drawn between an accused who is “produced before Court” and “appears before Court”, and the same standard of approach cannot be made in remanding the accused to the custody. In cases where the accused appears in pursuance to a summons the bail application has to be considered and disposed of in accordance with the law regarding the grant of bail.

 

The ‘bail’ means as per Wharton’s Law Lexicon, to “set at liberty a person arrested on security being taken for his appearance’. As per the Encyclopaedia Britannica, the bail is a procedure by which a Judge: or Magistrate sets at liberty one who has been arrested, upon receipt of security to ensure the release prisoner’s latter appearance in Court for further proceedings.The Shorter Oxford English Dictionary gives the meaning for ‘Bail Bond’ as security given for his appearance at a time and place assigned. ‘Bail’ means temporary release from imprisonment on finding sureties or security to appear for trial.The meaning of ‘Bail’ as given in the Webster’s Encyclopaedic Unabridged Dictionary of the English Language is “to grant or obtain the liberty (of a person under arrest) on security given for his appearance when required as in Court for trial.

 

Laws related to Bail

New South Wales LAWS related to Bail –

  • SECTION 9 Decision to release without bail
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    A decision to release a person without bail can be made only by a police officer with power to make that bail decision under this Act.

  • SECTION 10 Decision to dispense with bail
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    (1) A decision to dispense with bail can be made only by a court or authorised justice with power to make that bail decision under this Act.
    (2) If bail for an offence is dispensed with, the person accused of the offence is entitled to be at liberty for the offence, in the same way as if bail had been granted.
    (3) A court or authorised justice is taken to have dispensed with bail for an offence if:
    (a) a person accused of the offence appears before the court or authorised justice in proceedings for the offence, and
    (b) the person has not previously been granted or refused bail for the offence, and
    (c) the court or authorised justice does not grant or refuse bail for the offence.

  • SECTION 11 Decision to grant or refuse bail
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    A decision to grant or refuse bail can be made only by a police officer, authorised justice or court with power to make that bail decision under this Act.

  • SECTION 12 Duration of bail?
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    (1) Bail ceases to have effect if:
    (a) it is revoked, or
    (b) substantive proceedings for the offence conclude and, at the conclusion of the proceedings, no further substantive proceedings for the offence are pending before a court.
    (2) Bail is not revived if, after the conclusion of substantive proceedings for an offence, further substantive proceedings for the offence are commenced. However, a new bail decision for the offence can be made under this Act.
    Note : Proceedings for an offence generally conclude if a person is convicted of and sentenced for the offence. If an appeal against the conviction or sentence is lodged after that conclusion, bail is not revived, but a new bail decision can be made.
    (3) If bail is granted by a bail authority for a specified period, bail ceases to have effect at the end of that period, unless sooner revoked.
    (4) An authorised justice or a court before which an accused person is required to appear under a bail acknowledgment may continue bail if:
    (a) bail would otherwise cease to have effect, and
    (b) substantive proceedings for the offence have not concluded.
  • SECT 17 Assessment of bail concerns?
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    Assessment of bail concerns
    (1) A bail authority must, before making a bail decision, assess any bail concerns.
    (2) For the purposes of this Act, a
    “bail concern” 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.
    (3) If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision.
    (4) This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement).

  • SECT 18 Matters to be considered as part of assessment
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    (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division:
    (a) the accused person’s background, including criminal history, circumstances and community ties,
    (b) the nature and seriousness of the offence,
    (c) the strength of the prosecution case,
    (d) whether the accused person has a history of violence,
    (e) whether the accused person has previously committed a serious offence while on bail,
    (f) whether the accused person has a history of compliance or non-compliance with any of the following:
    (i) bail acknowledgments,
    (ii) bail conditions,
    (iii) apprehended violence orders,
    (iv) parole orders,
    (v) good behaviour bonds,
    (vi) intensive correction orders,
    (vii) home detention orders,
    (viii) community service orders,
    (ix) non-association and place restriction orders,
    (x) supervision orders,
    (f1) if the bail authority is making the assessment of bail concerns because the accused person has failed or was about to fail to comply with a bail acknowledgment or a bail condition, any warnings issued to the accused person by police officers or bail authorities regarding non-compliance with bail acknowledgments or bail conditions,
    (g) whether the accused person has any criminal associations,
    (h) the length of time the accused person is likely to spend in custody if bail is refused,
    (i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
    (i1) if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,
    (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
    (k) 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,
    (l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,
    (m) the need for the accused person to be free for any other lawful reason,
    (n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,
    (o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,
    (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A,
    (q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code),
    (r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism,
    (s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.
    (2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered:
    (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900 ,
    (b) the likely effect of the offence on any victim and on the community generally,
    (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.

  • SECTION 19 Refusal of bail–unacceptable risk
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    (1) A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk.
    (2) For the purposes of this Act, an
    “unacceptable risk” is an unacceptable risk that the 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.
    (3) If the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.
    (4) Bail cannot be refused for an offence for which there is a right to release under Division 2A.

  • SECT 20 Accused person to be released if no unacceptable risks
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    1) If there are no unacceptable risks, the bail authority must:
    (a) grant bail (with or without the imposition of bail conditions), or
    (b) release the person without bail, or
    (c) dispense with bail.
    (2) This section is subject to Divisions 1A and 2A.

  • SECTION 20A Imposition of bail conditions
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    (1) Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns.
    (2) A bail authority may impose a bail condition only if the bail authority is satisfied that:
    (a) the bail condition is reasonably necessary to address a bail concern, and
    (b) the bail condition is reasonable and proportionate to the offence for which bail is granted, and
    (c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and
    (d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and
    (e) it is reasonably practicable for the accused person to comply with the bail condition, and
    (f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.
    (3) This section does not limit a power of a court to impose enforcement conditions.
    Note : Enforcement conditions are imposed for the purpose of monitoring or enforcing compliance with other bail conditions. Section 30 provides for this type of bail condition.

  • SECTION 21 Special rule for offences for which there is a right to release
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    (1) The following decisions are the only bail decisions that can be made for an offence for which there is a right to release:
    (a) a decision to release the person without bail,
    (b) a decision to dispense with bail,
    (c) a decision to grant bail to the person (with or without the imposition of bail conditions).
    (2) There is a right to release for the following offences:
    (a) a fine-only offence,
    (b) an offence under the Summary Offences Act 1988 , other than an excluded offence,
    (c) an offence that is being dealt with by conference under Part 5 of the Young Offenders Act 1997 .
    (3) Each of the following offences under the Summary Offences Act 1988 is an
    “excluded offence” :
    (a) an offence under section 5 (obscene exposure) if the person has previously been convicted of an offence under that section,
    (b) an offence under section 11A (violent disorder) if the person has previously been convicted of an offence under that section or of a personal violence offence,
    (c) an offence under section 11B, 11C or 11E (offences relating to knives and offensive implements) if the person has previously been convicted of an offence under any of those sections or of a personal violence offence,
    (d) an offence under section 11FA (custody or use of laser pointer in public place),
    (e) an offence under section 11G (loitering by convicted child sexual offenders near premises frequented by children).
    (4) An offence is not an offence for which there is a right to release if the accused person has previously failed to comply with a bail acknowledgment, or a bail condition, of a bail decision for the offence.
    (5) Subject to subsection (1), Division 2 (Unacceptable risk test–all offences) applies to a bail decision for an offence for which there is a right to release.

  • SECTION 22 General limitation on court’s power to release
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    1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision:
    (a) an offence for which an appeal is pending in the Court of Criminal Appeal against:
    (i) a conviction on indictment, or
    (ii) a sentence imposed on conviction on indictment,
    (b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).
    (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that theaccused person show cause why his or her detention is not justified.
    (3) Subject to subsection (1), Division 2 (Unacceptable risk test–all offences) applies to a bail decision made by a court under this section.

  • SECTION 22A Limitation on power to release in relation to terrorism related offences
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    1) Despite anything to the contrary in this Act, a bail authority must, unless it is established that exceptional circumstances exist, refuse bail for:
    (a) an offence under section 310J of the Crimes Act 1900 , or
    (b) any other offence for which a custodial sentence may be imposed, if the bail authority is satisfied that the accused person:
    (i) before being charged with that offence, has been charged with a Commonwealth terrorism offence or an offence under section 310J of the Crimes Act 1900 and the proceedings relating to the offence have not concluded, or
    (ii) has previously been convicted of a Commonwealth terrorism offence or an offence under section 310J of the Crimes Act 1900 , or
    (iii) is the subject of a control order made under Part 5.3 of the Commonwealth Criminal Code.
    (2) If the offence is a show cause offence, the requirement that the accused person establish that exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified.
    (3) Subject to subsection (1), Division 2 (Unacceptable risk test–all offences) applies to a bail decision made by a bail authority under this section.
    (4) In this section,
    “Commonwealth terrorism offence” has the same meaning as
    “terrorism offence” has in the Crimes Act 1914 of the Commonwealth.

FAQs

  • Bail conditions can be imposed when bail is granted or a bail decision is varied.
  • (1) A police officer may make a bail decision for an offence if the person accused of the offence is present at a police station and the officer is:
    (a) a police officer of or above the rank of sergeant and present at the police station, or
    (b) for the time being in charge of the police station.
    (1A) A police officer of or above the rank of sergeant at a hospital may make a bail decision for an offence if:
    (a) the person accused of the offence is present at the hospital to receive treatment, and
    (b) in the opinion of the police officer, it is not reasonable to take the person to a police station due to the person's incapacity or illness.
    (1B) A police officer of or above the rank of sergeant at a mental health facility (within the meaning of the Mental Health Act 2007 ) may, despite subsection (3), make a bail decision for an offence if the person accused of the offence is detained in the mental health facility for assessment under section 33 (1) (a) or (b) or (1D) (a) or (b) of the Mental Health (Forensic Provisions) Act 1990 and has been found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person.
    (2) The police officer may:
    (a) release the person without bail, or
    (b) grant bail (with or without the imposition of bail conditions), or
    (c) refuse bail.
    (3) A police officer cannot make a bail decision if:
    (a) a bail decision for the offence has been made by a court or authorised justice, or
    (b) the accused person has already made a first appearance for the offence and bail has been dispensed with.
    (4) A police officer cannot grant bail or release a person without bail if the accused person has been arrested under a warrant to bring the person before a court for sentencing.
    (5) Despite subsection (4), a police officer may grant bail to a person arrested as referred to in that subsection if the police officer is satisfied that exceptional circumstances justify the grant of bail.

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