Since its introduction just a few months ago, the new NSW Bail Act 2013 has caused controversy and criticism throughout NSW.
The controversy has centred on concerns that the new act is too lenient towards suspects, and media reports about ‘dangerous criminals’ being let out of prison.
The provisions of the current Bail Act were made in order to simplify the web of ad hoc presumptions that signified the previous bail act.
Adverse media reports have now led to the NSW government introducing a new Bill, essentially designed to make it harder for certain defendants to get bail.
While some proponents of the new scheme, including criminal lawyers and drafters of the law have voiced the opinion that now is too soon to evaluate the success of the laws, it appears that the government is planning on going ahead with changes anyway.
The proposed changes would certainly make it harder for some people to get bail.
The changes would essentially mean that those charged with certain serious offences would not be granted bail unless they can prove that they should be released.
Under the new bail act, a person is eligible for release on bail if any unacceptable risks can be overcome by bail conditions.
The proposed changes, on the other hand, put the onus upon the defendant.
The new Bill proposes that bail authorities must consider additional matters when applying the acceptable risk test.
- Whether the accused had a history of compliance or non compliance with previous grants of bail, AVOs, parole orders or good behaviour bonds
- Whether the accused has any criminal associations
- The conduct of the accused towards the victim and/or a victims family members after the offence
- If the offence is serious, the bail authority must consider the views of the victim of the offence or any family member of the victim when considering the safety of the victim, individuals or the community
- Whether the conditions could reasonably address bail concerns
These would be in addition to the already existing risk requirements:
- The likelihood of failure to appear at any proceedings for the offence
- The likelihood of the commission of further offences
- Whether they would be likely to endanger the safety of victims, individuals or the community
- The likelihood that they would interfere with witnesses
The changes are prefaced by a new preamble which states that the three main principles surrounding the issue of bail are:
- Ensuring safety to victims of crime, individuals and the community;
- The need to ensure the integrity of the justice system; and
- The presumption of innocence and right to be at liberty
The new ‘show cause’ requirement means that the onus is now on the accused person, to prove why their detention is not justified.
This test is separate to and applies regardless of the unacceptable risk test.
This significantly undermines the current approach.
‘Show cause’ offences include certain serious offences which are punishable by imprisonment for life.
They also include child sex offences, serious personal violence cases, certain drug offences, firearms and prohibited weapons and serious offences committed on bail, on parole or subject to a supervision order.
The new proposal will not allow a bail authority to grant bail unless the accused can show cause as to why their detention is not justified.
If there is no unacceptable risk, a release decision can be made, although the Bill, if passed will make getting bail a lot more difficult.
If you or a loved-one are at risk of being refused bail, or are currently in custody, contact an experienced bail lawyer for advice and assistance about the question of bail.