Review of Bail Act 1978 (NSW) Criminal Law Review NSW
Department of Justice and Attorney General October 2010
Slide 2
At its heart, the Act is a complex risk assessment scheme
balancing three broad principles: 1. The presumption of innocence:
bail is not intended to be a form of punishment, nor is a bail
determination a judgment of guilt or innocence. 2. Flight risks and
Court attendance: in order for the criminal justice system
tofunction effectively, accused people must turn up to Court on set
dates and an assessment must be made of the likelihood that a
person will flee. 3. Protection of the community: an assessment
must be made as to whether the accused may commit more offences or
interfere with the criminal justice process, for example by
interfering with witnesses or evidence, or be a danger to someone
else or to him or herself. What is the purpose of bail?
Slide 3
As noted in a 1998 NSW Parliamentary paper on bail laws in NSW,
there has been a tremendous shift away from the original emphasis
of bringing the accused to trial, to an emphasis on protecting the
community from possible violent acts while the accused is on bail3
3 As noted in Rachel Simpsons, NSW Parliamentary Library Research
paper, Bail in NSW, briefing paper No 25/97 1998.
Slide 4
The scheme applies to any offence heard in NSW, whether it is
against a Commonwealth or NSW criminal law. An application for bail
can be made: after charge and before the first appearance at Court
(Police bail); during any adjournments before or after the start of
the hearing of the case; between committal for trial or sentence,
and appearance in the District or Supreme Court; between date of
conviction and date of sentence; during any period of the stay of
execution of a judgment or sentence, while waiting for the hearing
of an appeal; and in various other circumstances. When is bail
considered?
Slide 5
Police are usually the first authority to consider whether to
release an arrested person on bail or not. The rules applying to
Police and Court bail are essentially the same. A Police officer of
the rank of sergeant or above, or the officer who is in charge of
the Police station, is authorised to grant bail as long as a Court
has not already decided that bail is to be refused in relation to a
particular charge or the requirement for bail has already been
dispensed with (s.17). Police Bail
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How bail works.
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Additional criteria to be considered In addition to determining
which classification an offence falls within, the authorised
officer or Court must then consider further criteria as outlined in
s.32 of the Act. The criteria include: the probability of whether a
person will appear in Court. In this regard a Court can only
consider: the person's background and community ties; any previous
failure to appear; circumstances of the offence including
seriousness and severity of probable penalty; the interests of the
person, having regard to length of time likely to be spent on
remand and the conditions thereof. the need of the person to be
free to prepare for the persons appearance in Court or to obtain
legal advice or both. whether the person is incapacitated by
intoxication, injury or drug use or in need of protection.
Slide 14
Additional criteria to be considered the protection of the
victim and their close relatives and any other person considered to
be in need of protection. the protection and welfare of the
community, having regard to previous failure to observe a bail
condition; likelihood of the person interfering with evidence,
witnesses or jurors and likelihood that the person will commit an
offence while on bail. the person is under the age of 18 years, or
is an Aboriginal person or a Torres Strait Islander, or has an
intellectual disability or is mentally ill, and any special needs
of the person arising from that fact. the person is a person
referred to in section 9B (3), the nature of the persons criminal
history, having regard to the nature and seriousness of any
indictable offences of which the person has been previously
convicted, the number of any previous such offences and the length
of periods between those offences.
Slide 15
If bail is granted, the Police officer, an authorised officer
or Court may impose conditions on the accused person (as set out in
s.36 & s.36A) for the purpose of promoting further effective
law enforcement, for the protection and welfare of any specially
affected person or the community, or reducing the likelihood of
future offences being committed by promoting the treatment or
rehabilitation of an accused person (s.37(1)). Conditions may not
be imposed that are any more onerous for the accused person than is
required by the nature of the offence or for the protection and
welfare of any specially affected person or by the circumstances of
the accused person (s.37(2)). Bail may be granted unconditionally
or subject to limited conditions.
Slide 16
Sections 36(2), 36A, 36B and 37A set out the conditions that
may be imposed. They include entering into an agreement to forfeit
money, observing certain conditions, attending rehabilitation
programs, not to associate with a particular person, not to go to
particular place and surrendering a passport. The amendments in
relation to intervention programs were introduced in response to
the NSW Drug Summit in 1999. Bail may be granted unconditionally or
subject to limited conditions.
Slide 17
Police have the power to arrest someone if they have reasonable
grounds to believe that the person has failed to comply or is about
to fail to comply with a bail undertaking or condition (s.50). It
is an offence to fail to appear at Court in accordance with a bail
undertaking with a maximum penalty equal to the maximum penalty for
the offence for which the accused failed to appear or three years
or 30 penalty units, whichever is the lesser. No sentence of
imprisonment imposed for this offence is to exceed 3 years (s.51).
If a Court is satisfied that an accused has failed to appear then
the Court may order the forfeiture of any money deposited or agreed
to be forfeited (s.53A). An affected person (for example the
guarantor) may object to such an order (ss.53C and 53D). Failure to
comply with bail undertaking
Slide 18
Remand population in NSW As of 30 June 2009 the adult remand
population in NSW was 2608.7 The remand population in NSW has been
steadily rising since the 30 June 2000. This trend is true for both
the male and female remand population. New South Wales has the
highest number of unsentenced prisoners in Australia.
Slide 19
In 2000, Ms Jacqueline Fitzgerald of the NSW Bureau of Crime
Statistics and Research (BOCSAR) undertook a study of the remand
population in NSW. Fitzgerald found there were several factors
contributing to the rise in the remand population: the overall
number of people appearing in the Local Courts had increased; there
had been an increase in the number of persons appearing for some
offences with a high rate of bail refusal; there were indications
that Police and magistrates were becoming less willing to grant
bail; Court delay had increased in the Higher Courts; an increase
in matters being dealt with summarily, and the targeting of repeat
offenders by NSW Police Force. Fitzgerald, Jacqueline, Nov 2000.
Increases in the NSW Remand Population, Crime and Justice
Statistics, NSW Bureau of Crime Statistics and Research.
Slide 20
In August 2004, Fitzgerald completed another study on bail,
this time analysing the impact of the Bail Amendment (Repeat
Offenders) Act 2002. This amendment removed the presumption in
favour of bail for various repeat offenders. Fitzgerald found that
since the amendments were introduced, the bail refusal rate for
defendants appearing in NSW Criminal Courts had increased by 7 per
cent. The increase was greatest among defendants targeted by the
amendments i.e. those with prior convictions, those appearing for
an indictable offence and those who had previously failed to
appear.10 There is also evidence that amendments to the Act have
resulted in an increase in the general remand population.
Fitzgerald J & Weatherburn D The Bail Amendment (Repeat
Offenders) Act 2002 Crime & Justice Bulletin 83 BOCSAR August
2004.
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Remand population in Australia The increase in the remand
population in NSW has been mirrored in other Australian
jurisdictions. In June 2010, there were 29,361 persons in full-time
custody in Australia, comprising of 22,535 sentenced and 6,826
unsentenced prisoners. The Australian Capital Territory and South
Australia had the highest proportions of unsentenced prisoners (43%
and 36% respectively). The lowest proportions of unsentenced
prisoners were recorded in Western Australia and Victoria (17% and
19% respectively). New South Wales had the highest number of
unsentenced persons in full-time custody, with 2,778 people,
followed by Queensland with 1,215.14 The total number of prisoners
in Australia has increased by around 20% between 1995 and 2006, but
remand numbers have jumped almost 150% over the same period.
Slide 23
The consequences of remand Remanding a person in custody is a
serious matter. Remandees awaiting trial enjoy a presumption of
innocence, yet they remain incarcerated, often for months at a
time. The decision to remand an accused person in custody has
consequences for both the individual and the community. The
financial and social consequences for the accused include: being
unable to care for children or other family members; if employed,
losing their job; being deprived of their liberty and unable to
participate in ordinary life; difficulty in preparing their defence
to the charge; incurring a stigma associated with being in prison,
and if they are not found guilty of the charges, the hardship they
have suffered by being on remand cannot be redressed.
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The consequences of remand For the community there are also
both financial and social ramifications. Financially, remanding
accused persons in custody involve both the high cost of
incarceration for the State and the cost of enforcing Court
decisions and attendance, as well as any delays to the Court
operations. The average cost per day to keep a prisoner in custody
in NSW is $187.14 for open custody, and $216.85 for secure custody.
The average cost per juvenile in custodial services in NSW in
2006-2007 was $543.19. Socially, the community is faced with the
problem of reintegrating into society those who have served time on
remand who have lost their job and community connections.
Slide 25
The consequences of remand Chilvers M, Allen J and Doak P, May
2002. Absconding on Bail, Bulletin Contemporary Issues in Crime and
Justice No. 68, NSW Bureau of Crime Statistics and Research.
Remanding a person into custody is not, however, a decision which
courts take lightly. In order for the criminal justice system to
function effectively, accused people must turn up to Court on set
dates and an assessment must be made of the likelihood that a
person will flee. Similarly, an assessment must be made as to
whether the accused may commit more offences or interfere with the
criminal justice process, for example by interfering with witnesses
or evidence, or be a danger to someone else or to him or herself.
Research indicates that a large number of people on bail fail to
appear. There are costs associated with their detection and arrest
as well as the risk of further offences. In 2008, around 5.5% of
accused persons in the Local Court failed to appear and warrants
were issued for their arrest. In Higher Courts, the rate was around
0.2%. While these are significant reductions from 2001, where the
rates were around 10.5% and 3% respectively, there is concern that
some of these accused persons continue to commit offences whilst on
bail. It is therefore important for bail laws to be carefully
balanced to ensure that accused people are only remanded where it
is necessary to achieve the stated aims of the bail scheme.
Chilvers M, Allen J and Doak P, May 2002. Absconding on Bail,
Bulletin Contemporary Issues in Crime and Justice No. 68, NSW
Bureau of Crime Statistics and Research.
Slide 26
Presumption against Bail Where the presumption against bail
classification applies the accused must satisfy the Court that bail
should not be refused. This presumption has attracted a
considerable sum of controversy for the following reasons: the
classification operates against the presumption of innocence and
the requirement that the prosecution must prove the case against
the accused there is a significant pressure to plead guilty to a
minor offence, if an accused cannot get bail; and there is little
redress for those who are refused bail and ultimately are
acquitted. Source: Cran v State of NSW [2004] NSWCA 92.