The new Bail Act, passed last year, will take effect on May 20. It introduces a new way of dealing with bail.
The idea is to make bail simpler, while ensuring that the community is protected from people who might pose an “unacceptable risk”, before their cases are held.
Under the previous law, there was a presumption in favour of bail for certain offences (depending on how serious they were), but now NSW will be following a different test – a risk management test that is already being used in other states.
This involves looking at the risks involved with granting bail. If there are no risks, or if they can be mitigated by imposing conditions on the bail, the person will be granted bail.
What does this mean for me?
If you are applying for bail, or planning on doing so, the new criteria will be relevant for you. Police have always been required to provide you with information about your eligibility for bail and this does not change, but the process becomes simpler. In the past there were three different forms – after the introduction of the bail act, there is just one.
Some offences under the new Bail Act carry a special ‘right to release,’ which means that you have the right to bail. This applies to a fine only offence, and many less serious offences (listed in the Summary Offences Act). It also applies if your matter is being dealt with by Youth Justice Conferences under the Young Offenders Act.
Basically, the act authorises the police, an authorised justice or a court to consider particular risks that an accused might pose. These include if there is an “unacceptable risk” that the person will:
- fail to appear in court;
- commit a serious offence;
- endanger the safety of victims, individuals or the community;
- interfere with witnesses
In deciding if you pose an unacceptable risk, section 17 of the new Bail Act sets out the things that can be considered in making this decision:
- your background (including any criminal history, circumstances and community ties)
- the nature and seriousness of the offence
- the strength of the prosecution case
- whether the accused has a history of violence
- whether the accused has previously committed a serious offence while on bail
- if the accused has a pattern of non-compliance with bail, parole or good behaviour bonds in the past
- the length of time a person will likely spend in custody if bail is not granted
- the likelihood of a custodial sentence being given if the accused is found guilty
- the likelihood of an appeal (if the accused has already been found guilty and is appealing)
- any special vulnerability of the person (such as being Aboriginal, a Torres Strait Islander, a mental health impairment, or youth)
- the need for the accused person to be free in order to prepare their case or get legal advice
- the need for the accused to be free for any other lawful reason
If you meet this criteria you will be released unconditionally. If not, you may still be able to get bail, but it may be subject to certain restrictions.
If the risk cannot be mitigated by conditional bail, it will not be granted.
Another really important change to bail conditions is the process of review. In the past, if a police officer decided whether or not to give bail and under what conditions, only a refusal to grant bail could be reviewed by a more senior police officer. Now, you can also ask for a review of a bail grant with conditions attached.
Bail conditions must be reasonable, proportionate to the offence an appropriate to the risk. Any restrictions can only be imposed for the purpose of mitigating an unacceptable risk. It is important to note, however, that a judge may vary your bail conditions when the matter comes before the court.
In summary, bail should only be refused, or given with conditions attached to it where there is a belief that the accused poses an unacceptable risk. In addition, the person making a decision about the grant of bail must have regard to the presumption of innocence and general right of liberty.
The Judicial Commission of New South Wales has produced material extensively covering bail. To find out more about the new bail rules, click here.
Legal aid has been providing training for the new bail act to criminal defence lawyers in preparation for when the act comes into force.