Winning Difficult Bail Applications

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A recent Commonwealth case has provided some guidance on meeting stringent bail tests in serious cases.

The applicant, a 16-year-old boy known as ‘NK’, was charged under section 102.6 of the Criminal Code Act (Cwth) with ‘funding a terrorist organisation’; an offence which carries a maximum penalty of 25 years imprisonment and triggers a “rebuttal presumption” under Commonwealth law; in other words, a requirement that the applicant must persuade the court that it is appropriate to grant bail.

This requirement may be seen as analogous, in some respects, to the “show cause” requirements under the new NSW Bail Act.

The Court ultimately granted bail to the applicant on strict conditions after being persuaded that a combination of factors amounted to “exceptional circumstances” justifying a grant of bail.

The New NSW Bail Act – Before the Amendments

The new Bail Act initially proposed a two-step test which bail authorities such as magistrates and judges were required to consider before deciding whether or not to grant bail.

The first step was to determine whether the applicant posed an “unacceptable risk” to the community. Bail would be granted if the applicant did not pose an unacceptable risk.

If an unacceptable risk was identified, the bail authority would then turn to the second step of the test, which was whether the risk could be mitigated (overcome) by imposing bail conditions.

Bail conditions are simply requirements that the applicant (ie the person in custody) must abide by if granted bail – for example, report to police on certain days, live at a particular address, deposit a security (eg money), keep to a curfew etc.

If the unacceptable risk could be mitigated, bail would be granted on those conditions. If not, bail would be refused.

After the Amendments

A series of amendments which became law in early February 2015 changed the test that must be applied when determining bail.

The new test is essentially a one-step approach that requires a bail authority to assess any unacceptable risks together with any possible bail conditions that may mitigate that risk at the same time.

The amendments also introduced a requirement that, for certain offences, the applicant must “show cause” as to why their detention is not justified before they can be granted bail.

“Show cause” offences include serious child sex offences, murder and manslaughter. In fact, there are now more than 900 offences which attract the show cause requirement.

Previous Case – M v R

In a previous case of M v R [2015], Supreme Court Justice McCallum considered the “show cause” provision and provided some guidance regarding its application.

The crux of the judgment is that bail applicants who are required to “show cause” do not have to satisfy a higher threshold than that of the “unacceptable risk” test.

Indeed, McCallum found that where no unacceptable risk is identified, it should follow that the “show cause” requirement is also satisfied, and an applicant should be granted bail.

Significantly, Justice McCallum rejected the proposition that the recent amendments mean that those charged with “show cause” offences should ordinarily be refused bail.

That finding flies-in-the-face of submissions regularly made in court by police prosecutors and DPP solicitors to the effect that the new provisions mean that bail should only be granted on rare occasions.

His Honour found that the court should focus upon the facts and circumstances of the offence, along with any other considerations that are relevant under section 18 of the Bail Act.

Commonwealth Cases – ‘Exceptional Circumstances’

As stated, the present charges were brought under Commonwealth legislation, not State legislation.

The 2006 Victorian decision of Hammoud v DPP is relevant in Commonwealth cases which attract a “rebuttal presumption”.

Terrorism-related cases fall into this category.

Hammoud essentially says that the “rebuttal presumption” created by section 15AA of the Commonwealth Crimes Act 1914 requires the applicant to satisfy the court that “exceptional circumstances” exist before a bail application can be granted.

Present Case

During the present bail hearing, the Crown submitted that:

“it is well accepted that there is a heavy onus on the applicant to show that exceptional circumstances exist [and] In that respect it was incumbent upon the applicant to demonstrate something unusual or out of the ordinary, or ‘special’ when compared to circumstances that affect all accused in a similar position to the applicant.”

However, the Court found that a combination of factors can amount to “exceptional circumstances” in cases involving a rebuttal presumption, and that this threshold was met in the current application. Relevant factors included:

  • The applicant’s age,
  • His lack of previous convictions,
  • His vulnerability,
  • The influence exerted by the two older men,
  • Strong family ties (reducing the risk of flight), and
  • His psychological state, including diagnosis of adjustment, anxiety and depressive disorders.

In granting bail, the court found that any risks could be overcome by bail conditions, including curfew conditions and electronic monitoring.

What it Means

Both M v R (in the context of NSW) and R v NK (in the Commonwealth context) make it clear that there does not need to be anything particularly exceptional or unique about a case in order to overcome the higher thresholds created by the “show cause” and other rebuttal presumptions; a combination of factors can suffice.

Lawyers who are representing clients faced with serious charges that trigger rebuttal presumptions should therefore work diligently towards building proof of those factors – whether through affidavits, medical reports or otherwise – which can ultimately mean the difference between a client having their freedom or remaining in custody for months or even years pending the resolution of their case.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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