BAIL APPLICATIONS

Some people who are charged with a criminal offence are granted bail by the police. Those who are refused bail by the police can apply to the Local Court for bail to be granted by a Magistrate.

If an accused person applies for bail in the Local Court and is refused, they have two options. They may make a further bail application before the Local Court by satisfying section 74 of the Bail Act 2013 (demonstrating a change of circumstances) or by making a fresh bail application before the Supreme Court of New South Wales.

LOCAL COURT BAIL APPLICATIONS


When applying for bail before the Local Court if there is no objection by the defence, the police prosecutor will provide the Magistrate with the accused’s police facts and criminal history. If there is no objection from the prosecution, the defence will then if desirable hand up any documents in support of the accused’s bail application.

The prosecution then usually indicate their attitude towards the bail application. Bail will not always be opposed by the prosecution. If the prosecution consents to bail this does not guarantee that the Magistrate will grant bail as they are required to make a decision on the application based on merit.

If the prosecution opposes bail they will make submissions outlining reasons why. The defence will then make submissions as to why bail should be granted.

With respect to less serious offences and offences that do not fall within the ‘Show Cause’ provisions of the Bail Act 2013, the test of ‘unacceptable risk’ is considered.

Unacceptable Risk Test

Section 17 of the Bail Act 2013 provides that a bail authority (in the Local Court this will be a Magistrate) must, before making a bail decision, assess any bail concerns.

This section provides that a ‘bail concern’ is a concern that an accused person, if released from custody, will:

  1. fail to appear at any proceedings for the offence; or
  2. commit a serious offence; or
  3. endanger the safety of victims, individuals or the community; or
  4. interfere with witnesses or evidence.

Section 18 of this Act lists the matters to be considered in an assessment of the above bail concerns.

Section 19 provides that a bail authority must refuse bail if it is satisfied, on the basis of an assessment of bail concerns, that there is an unacceptable risk. Unacceptable risks are listed in section 19(2) of the Bail Act 2013 and are the same as the bail concerns listed in section 17.

If the bail authority forms the view that there are risks but that they can be mitigated by the imposition of bail conditions, then bail may be granted. If the bail authority forms the view that the risks are unacceptable and cannot be mitigated, bail may be refused.

Show Cause Test

With respect to offences that fall within the ‘show cause’ provisions of the Bail Act 2013, section 16A provides that the accused must demonstrate cause as to why their detention is not justified, otherwise the court is not to grant bail.

The show cause test usually overlaps with the unacceptable risk test. Cause can be shown by one single factor or a combination of factors. In order to show cause the defence can rely upon the accused’s age, whether it is their first time in custody, the strength of the prosecution case, delay, the likelihood of a custodial penalty if convicted of the said offence/s and other relevant factors.

Show cause offences are outlined in section 16B of the Bail Act 2013 and include but are not limited to:

  1. an offence that is punishable by imprisonment for life;
  2. a serious indictable offence that involves sexual intercourse with a person under 16 years by a person who is 18 years or over, or the infliction of actual bodily harm with intent to have sexual intercourse with a person under 16 years by a person who is 18 years or over;
  3. a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence;
  4. certain serious indictable weapons offences outlined in the Crimes Act 1900, the Weapons Prohibition Act 1998 and an indictable offence that involves the unlawful possession of a military-style weapon;
  5. an offence under the Drug Misuse and Trafficking Act 1985 that involves cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or plant;
  6. an offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug;
  7. a serious indictable offence that is committed by an accused person while on bail or whilst on parole;
  8. an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person whilst subject to a supervision order;
  9. a serious indictable offence of attempting to commit an offence mentioned elsewhere in the section;
  10. a serious indictable offence of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in the section;
  11. a serious indictable offence that is committed by an accused person while they are the subject of a warrant authorising the arrest of the person.

If the accused shows cause as to why their detention is not justified, the court then proceeds to making a decision in accordance with the unacceptable risk test. If there are risks but the court is of the view that they can be mitigated by the imposition of suitable bail conditions, the Magistrate may grant conditional bail to the show cause offence/s.

Section 74 Test

This section of the Bail Act 2013 provides that a court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a bail application is to refuse to hear another bail application made by the accused person for the same offence, unless there are grounds for a further application.

The grounds for a further bail application are:

  1. the person was not legally represented when the previous application was dealt with and the person now has legal representation; or
  2. material information relevant to the grant of bail is to be presented in the application that was not present to the court in the previous application; or
  3. circumstances relevant to the grant of bail have changed since the previous application was made; or
  4. the person is a child and the previous application was made on a first appearance for the offence/s.

If section 74 is satisfied and the charge/s do not fall within the ‘show cause’ provisions of the Act then the test of ‘unacceptable risk’ will be considered. If risks are present but they can be mitigated by the imposition of bail conditions, bail may be granted. If the court is of the view that the risks present cannot be mitigated (are unacceptable), the application may be refused.

SUPREME COURT BAIL APPLICATIONS

Bail hearings in the Supreme Court of New South Wales are normally more formal. In this court the police are usually represented by a solicitor employed by the Director of Public Prosecutions. If bail is not granted in the Local Court a fresh application may be made before the Supreme Court.

The first application made before the Supreme Court is considered as a fresh application and therefore the accused is not required to satisfy section 74. If however, the first Supreme Court bail application is refused, if making a further application before this court the accused must satisfy section 74.

In this court a Supreme Court Judge will decide whether bail should be granted.

The same tests apply in this court as they do in the Local Court.

If you have been charged with an offence and require a bail application to be made, call Karnib & Co Lawyers at any time on 0450503696 or email us on [email protected] to arrange a free consultation. For those who are unable to attend our offices, we offer conferences by telephone, Skype, Zoom and FaceTime anywhere around the world.