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Bail

[20-000] General introduction
[20-020] Persons to whom the Bail Act does not apply
[20-040] Persons and proceedings to which the Bail Act applies
[20-060] Procedure in bail application
[20-080] Power to refuse to hear bail applications
[20-100] Evidence
[20-120] Rights following grant of bail — s 7
[20-140] Standard of proof
[20-160] Categories of applications and accused’s entitlement to bail
1. Right to release on bail for certain minor offences — s 8
2. Offences where there is a presumption in favour of bail and exceptions — s 9
3. Offences where there is a presumption against bail
4. Cases where bail is to be granted in exceptional cases only
[20-180] Dispensing with bail — s 10
[20-200] Criteria to be considered in bail applications — s 32
[20-220] Periods for which bail may be granted in Local Court — s 6
Restrictions on imposing bail conditions — s 37
Reasons to be recorded — s 38
[20-240] Arrangements with courts in other States or Territories
[20-260] Limitation to length of adjournments where bail refused
[20-280] Conditions of bail and breach thereof
Suitability as surety or sufficiency of security
Additional bail conditions for drug/alcohol assessment/treatment/ rehabilitation — s 36A
Additional bail conditions as to non-association and place restriction — s 36B
Offences occasioning death and passport requirement
[20-300] Applications, variations and review of bail
[20-320] Section 25A — stay of magistrates’ decision to grant bail if review sought
What is a serious offence
[20-340] Notice of persons in custody after bail granted — s 54A
[20-360] Acceptable person
[20-380] Discharge of surety
[20-400] Continuing bail — s 43
[20-420] Variations generally
[20-440] Failure to appear
Forfeiture after conviction for offence of failing to appear — s 53AA
Hearing of formal objections to deemed forfeiture orders — s 53DA
Reasonable excuse for non-appearance
Arrest following breach
Persons arrested on warrants for sentencing
Court record
[20-460] Enforcement of bail agreements
Return of sureties — s 63
[20-480] Foreign passports
[20-500] Bail security — land
[20-520] Bail on appeal — procedure
Bail where appeal lodged on day of conviction
Bail where appeal lodged after day of conviction
Bail review pending appeal
[20-540] Form 8 — Suggested bail form for use at court
Note:

All references to sections in this chapter are, unless otherwise stated, references to sections of the Bail Act 1978.

To top [20-000] General introduction

When determining an application for bail the court must do so in strict conformity with the Bail Act.

To top [20-020] Persons to whom the Bail Act does not apply

1. 

Persons, the subject of overseas extradition proceedings under the Extradition Act 1988 (Cth).

Note:

however, that the Bail Act does apply to interstate extraditions under the Service and Execution of Process Act 1992: see Extradition at [55-000].

2. 

Children in need of care under Children (Care and Protection) Act 1987.

To top [20-040] Persons and proceedings to which the Bail Act applies

1. 

A person issued with a CAN (court attendance notice) whether or not that person was arrested prior to the issue of the CAN: s 23(a).

2. 

A person issued with a field CAN and appearing before a magistrate or authorised justice: s 23(a).

3. 

If a person is before the court having complied with a subpoena issued under s 222 Criminal Procedure Act 1986 or having been arrested on warrant for failure to comply, then s 230 Criminal Procedure Act allows the grant of bail to such persons.

Note:

that s 231 Criminal Procedure Act allows the issue of a warrant of commitment for a period of seven days if the person refuses to give evidence or produce documents, etc: s 231 Criminal Procedure Act.

4. 

If an application is made for a final or interim apprehended violence order, the Act applies to the defendant and the proceedings are regarded as proceedings to which s 8 applies (that is, where there is a right to release on bail): s 83 Crimes (Domestic and Personal Violence) Act 2007.

5. 

Persons accused of offences under Commonwealth legislation triable within the jurisdiction.

To top [20-060] Procedure in bail application

The prosecution commences by tendering documents setting out the circumstances of the offence and the criminal record of the accused.

These documents will permit a determination as to which category of offender is before the court. The category will dictate the onus of proof and criteria that will be used to make the bail determination.

The prosecution bears the onus of establishing why bail should not be granted in the following cases:

  • application for bail under s 8: see [20-160]

  • application for bail under s 9 except in the case of certain offences: see [20-160]–[20-180].

The accused bears the onus of establishing why bail should be granted in the following cases:

To top [20-080] Power to refuse to hear bail applications

Section 22A limits applications for bail by persons who are in custody bail refused.

The court is to refuse to entertain an application for bail if an application has already been made by the accused and dealt with by the court unless there are grounds for a further application.

Grounds for a further application under s 22A(1A) are:

(a) 

the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

(b) 

information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(c) 

circumstances relevant to the grant of bail have changed since the previous application was made.

The court also has power to refuse to hear a bail application that is frivolous or vexatious.

These provisions do not affect the power of a local court to review a bail decision under Pt 6 Div 2 or the right of a person to request such a review: s 22A(4).

If a court has previously dealt with an application for bail a lawyer may refuse to make a further application if there are no grounds for such application: s 22A(5).

To top [20-100] Evidence

The court may take into account any evidence or information it considers credible or trustworthy in the circumstances and therefore is not bound by the rules of evidence: s 32(3).

To top [20-120] Rights following grant of bail — s 7

See R v Peehi (1997) 41 NSWLR 476.

Section 7 was considered by the Court of Criminal Appeal in R v Peehi. It was held that where the accused had appeared before the court in accordance with his bail undertaking within the meaning of s 7(1), his right to remain at liberty ceased. See also s 16A(2).

To top [20-140] Standard of proof

In a decision in relation to bail it is sufficient if the court is satisfied of any matter or information on the balance of probabilities: s 59.

To top [20-160] Categories of applications and accused’s entitlement to bail

Tables outlining the offences contained within each of the following categories are set out at Bail – presumptions, [22-020]–[22-100].

1. Right to release on bail for certain minor offences — s 8

For certain minor offences there is an entitlement to be granted bail.

These include:

(a) 

all offences that are not punishable by a sentence of imprisonment (except in default of payment of a fine),

(b) 

offences under the Summary Offences Act 1988 that are punishable by a sentence of imprisonment,

(c) 

all offences punishable summarily as prescribed by the regulations (note no regulation has yet been made),

(d) 

proceedings for breaches of good behaviour bonds and extension and revocation of community service orders.

except offences against s 51 (offence of failing to appear).

An entitlement to bail means that the person is entitled to be granted bail unconditionally or subject to conditions that the court or authorised officer believes are reasonably necessary and reasonably able to be entered into by the person so that he or she can be released as soon as possible after entering the bail undertaking: s 8(2)(b).

The entitlement does not apply if:

(a) 

the person has previously failed to comply with a bail undertaking given for the offence, or

(b) 

the person is incapacitated by intoxication, injury or the use of a drug or is otherwise in danger of physical injury or in need of physical protection,

(c) 

the person stands convicted of the offence or the conviction has been stayed,

(d) 

if bail has been dispensed with under s 10.

The entitlement is not lost merely because the person is in custody for some other offence for which the person is not entitled to be granted bail: s 8(3).

The entitlement does not apply however, if the person is serving a custodial sentence for another offence which is for a longer period than the adjournment for the offence, the subject of the bail application: s 8(4).

Note:

a person who is not entitled to be granted bail under these provisions may nevertheless be granted bail: s 13.

2. Offences where there is a presumption in favour of bail and exceptions — s 9

Where the presumption in favour of bail applies, the accused is entitled to be granted bail unless the authorised officer or court is satisfied having regard to the matters in s 32 that there is justification in refusing bail or the person is convicted of the offence or the conviction is stayed or bail has been dispensed with: s 9(2).

Note:

that a person not entitled to bail under this provision may still be granted bail: s 13.

This presumption applies to all offences except:

(a) 

Certain drug offences and firearms offences under ss 8A and 8B where there is a presumption against bail: see Offences where there is a presumption against bail, below.

(b) 

Certain domestic violence offences and offences of contravening domestic violence orders under s 9A. “Domestic violence offence” includes stalking and intimidation.

The presumption in favour of bail does not apply to these offences if the court or authorised officer is satisfied that the accused has:

(i) 

a history of violence, or

(ii) 

been violent to the other person in the past whether or not convicted for such an offence, or

(iii) 

failed to comply with a bail undertaking for the protection and welfare of the victim unless the court or authorised officer is satisfied that such condition will be complied with.

An accused has a history of violence if found guilty within the last 10 years of a personal violence offence committed against any person, or an offence of contravening an apprehended violence order by any act involving violence: s 9A(2).

(c) 

Offences referred to in s 8(1) (see Right to release on bail for certain minor offences — s 8, above) unless the person is not entitled to be granted bail under s 8 only because he or she has failed to comply with a bail undertaking or condition: s 9(1)(b).

(d) 

An offence of failing to appear on a bail undertaking under s 51.

(e) 

Murder or manslaughter: s 9(1)(f). Note however, that s 9C provides that in relation to murder, bail is only to be granted in exceptional circumstances: see Cases where bail is to be granted in exceptional cases only, below.

(f) 

An offence under s 26 Crimes (Criminal Organisations Control) Act 2009 (association between members of declared organisations subject to interim control or control order).

(g) 

If the person is in custody in relation to some other offence and is likely to be in custody for a longer period than the adjournment for the offence for which bail should be granted: s 9(4).

(h) 

If at the time of the offence the person: s 9B

(i) 

was at liberty on bail, or

(ii) 

was on parole, or

(iii) 

was serving a sentence but not in custody, or

(iv) 

was subject to a good behaviour bond or intervention program order, or

(v) 

was in custody, or

(vi) 

has been previously convicted of an offence against s 51, or

(vii) 

has been convicted of one or more indictable offences (whether or not dealt with on indictment or summarily).

(i) 

Other specific offences under Crimes Act 1900, Drug Misuse and Trafficking Act 1985 and the Criminal Code Act 1995 (Cth).

3. Offences where there is a presumption against bail

Where there is a presumption against bail, bail will normally be refused. The strength of the prosecution case is the main consideration: R v Iskandar (2001) 120 A Crim R 302.

The onus is on the accused to satisfy the authorised officer or court that bail should not be refused: ss 8A(2), 8B(2), 8C(2), 8D(2), 8E(2), 8F(1).

Note:

that bail cannot be dispensed with for these offences: ss 8A(3), 8B(3), 8C(3), 8D(4), 8E(3), 8F(2).

The Act creates presumptions against bail for the following offences:

(a) 

Section 8A — Certain offences under the Drug Misuse and Trafficking Act and the Criminal Code Act.

(b) 

Section 8B — Serious firearms and weapons offences

(i) 

Crimes Act — ss 93(G), 93(GA), 93(H)(2), 93(I)(2), 154D,

(ii) 

Firearms Act — ss 7, 36, 50, 50A(2), 51(1A), 51(2A), 51A, 51D(2) being an offence that relates to a prohibited firearm or pistol.

(iii) 

Weapons Prohibition Act — the unauthorised possession, sale, ongoing sale and manufacture of military-style weapons

(c) 

Section 8C — Certain repeat property offenders

Where the person is:

(i) 

accused of two or more property offences,

(ii) 

bail is sought in respect of one or more of those offences, and

(iii) 

the person has been convicted of one or more serious property offences within the last two years.

“Serious property offence” means:

  • an offence under ss 94–99, 106, 107, 109, 110–113, 149, 154AA, 154C or 154F Crimes Act or offences of attempting to commit these offences

  • an offence under the law of the Commonwealth, another State or Territory or of another country that is similar to these offences.

(d) 

Section 8D — Offences committed during the course of riots or other civil disturbances

These offences include:

(i) 

an offence under s 93B (riot) Crimes Act,

(ii) 

any other offence that is punishable by imprisonment of two years or more that is alleged to have been committed,

  • in the course of the accused person participating in a large-scale public disorder, or

  • in connection with the exercise of police powers to prevent or control such a disorder or the threat of such a disorder.

Pubic disorder means, a riot or other civil disturbance that gives rise to a serious risk of public safety, whether at a single location or resulting from a series of incidents in the same or different locations: s 8D(2).

Section 9 does not apply to an offence to which this section applies: s 8D(2).

(e) 

Section 8E — Persons on lifetime parole who commit offences carrying prison terms

This applies to an accused person if:

(i) 

the person is accused of an offence for which a penalty of imprisonment may be imposed, and

(ii) 

the person is serving a sentence of imprisonment for life and is on parole.

This section does not apply to a person charged with murder to whom s 9C applies: s 8E(5).

(f) 

Section 8F — Persons who breach extended supervision orders or interim supervision orders

This applies to any person accused of an offence under s 12 Crimes (Serious Sex Offenders) Act 2006.

4. Cases where bail is to be granted in exceptional cases only

In R v Young 2006 NSWSC 1499, Johnson J applied the ordinary dictionary meaning to the term “exceptional” as “forming an exception or unusual instance; unusual; extraordinary”.

In R v Tapueluelu (unrep, 5/1/04, NSWSC), Dowd J expressed the view that the test of exceptional circumstances sets the onus on the applicant of a very high order and requires something more than special circumstances or mere circumstances.

An authorised officer or court is not to grant bail for the following offences/offenders unless satisfied exceptional circumstances exist:

(a) 

section 9C — murder,

(b) 

section 9D — repeat offenders — serious personal violence offences.

A person is a repeat offender if that person has a previous conviction for a serious personal violence offence other than the offence for which bail is sought.

“Serious personal violence” offence means:

(a) 

an offence under, or mentioned in, ss 19A, 24, 26, 27, 28, 29, 30, 33, 33A, 35(1) or (3), 37, 38, 39, 46, 47, 48, 61B, 61C, 61D, 61I, 61J, 61JA, 61K, 61M, 63, 65, 66A, 66B, 66C, 66D, 66EA, 66F, 67, 68, 71, 73, 78H, 78I, 78K, 78N, 80A, 85A, 86, 87, 90A, 91, 95, 96, 97, 98, 103, 110, 195(1)(b) or (2)(b) or 198 Crimes Act,

(b) 

an offence under ss 79, 106, 107, 109, 111, 112, or 113 Crimes Act if the circumstances of the offence involve an act of actual or threatened violence against a person, or

(c) 

of attempting to commit an offence referred to in paragraph (a), or

(d) 

under the law of the Commonwealth, another State or Territory or of another country that is similar to an offence referred to in paragraphs (a), (b) or (c).

To top [20-180] Dispensing with bail — s 10

Bail may be dispensed with and if no specific order or direction is made shall be deemed to have been dispensed with except where the person is accused of an offence to which s 8A–8F applies.

Section 10(3) provides that the deeming provision does not apply if bail is continued and no specific direction is made by the court, the court is deemed to have continued bail.

To top [20-200] Criteria to be considered in bail applications — s 32

Bail may be refused only in conformity with the Act (s 14) and the only matters which may be considered are those set out in s 32. In R v Hilton (1986) 7 NSWLR 745 it was noted:

  • the legislature intended to prescribe those matters exhaustively: at 749

  • section 32 is a mandatory, exhaustive and exclusive statement of those criteria to be considered: at 750, and

  • it provides a rigid and narrow code which defines exclusively, exhaustively and with precision the only matters which may be considered: at 751.

In summary, s 32 provides:

(a)

the probability of whether or not the person will appear having regard only to:

(i)

background and community ties as indicated (in the case of a person other than an Aboriginal person or a Torres Strait Islander) by the history and details of the person’s residence, employment and family situations and the person’s prior criminal record (if known)

(ia)

the person’s background and community ties, as indicated (in the case of an Aboriginal person or a Torres Strait Islander) by the person’s ties to extended family and kinship and other traditional ties to place and the person’s prior criminal record (if known)

(ii)

any previous failure to appear

(iii)

circumstances of offence, nature and seriousness, strength of the evidence, severity of the penalty or possible penalty

(iv)

specific evidence indicating whether it is probable that person will appear, and

(b)

the interest of the person having regard only to:

(i) 

period the person may spend in custody and conditions under which he or she would be held

(ii) 

needs of the person to be free to prepare for appearance and to obtain legal advice

(iii) 

needs of person to be free for any lawful purpose

(iv) 

whether person is incapable by intoxication, injury or use of drug or is otherwise in danger of physical injury or in need of physical protection

(v) 

if 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, any special needs of the person arising from that fact, and

(vi) 

if the person is a person referred to in s 9B(3), the nature of the person’s 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, and

(b1)

the protection of:

(i) 

any person against whom it is alleged that the offence concerned was committed, and

(ii) 

the close relatives of any such person, and

(iii) 

any other person the court considers to be in need of protection because of the circumstances of the case.

Note:

“close relative” in relation to a person, means:

“(a) 

a mother, father, wife, husband, daughter, son, step-daughter, step-son, sister, brother, half-sister or half-brother of the person, or the other party to a domestic relationship to which the person is a party, or

(b) 

if the person is a party to a domestic relationship, any person who is a relative, of the kind mentioned in paragraph (a), of either party to the relationship.”

(c)

the protection and welfare of the community, having regard only to:

(i) 

the nature and seriousness of the offence, in particular whether the offence is of a sexual or violent nature, or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act, and

(ii) 

whether or not the person has failed or has been arrested for an anticipated failure to observe a bail condition previously imposed in respect of the offence, and

(iii) 

the likelihood of the person interfering with evidence, witnesses or jurors, and

(iv) 

whether or not it is likely that the person will commit any serious offence while at liberty on bail, but the authorised officer or court may have regard to this likelihood only if permitted to do so under subs (2), and

(v) 

if the offence for which bail is being considered is a serious offence, whether, at the time the person is alleged to have committed the offence, the person had been granted bail, or released on parole, in connection with any other serious offence.

(vi) 

if the offence involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, any prior criminal record, if known of the accused person.

Section 32(2) and (2A) provide:

“(2)

The authorised officer or court may, for the purposes of subsection (1)(c)(iv) have regard to whether or not it is likely that the person will commit one or more serious offences while at liberty on bail if the officer or court is satisfied that:

(a) 

the person is likely to commit the offences, and

(b) 

that likelihood, together with the likely consequences, outweighs the person’s general right to be at liberty.

(2A)

The following matters are to be considered in determining for the purposes of subsection (1)(c) or (2) whether an offence is a serious offence (but do not limit the matters that can be considered):

(a) 

whether the offence is of a sexual or violent nature or involves the possession or use of a weapon or instrument within the meaning of the Crimes Act,

(b) 

the likely effect of the offence on any victim and on the community generally,

(c) 

the number of offences likely to be committed or for which the person has been granted bail or released on parole.”

The statements made in the computer generated criminal history of the applicant tendered by the prosecution are evidence of the facts stated, pursuant to the Evidence Act 1995. No onus is placed upon the Crown to prove the accuracy of the record simply because the accuracy is challenged by the unsworn assertion of the applicant. Once evidence is produced (either in cross-examination or by or on behalf of the applicant) which disputes the accuracy of the record, or where it is apparent on the face of the record itself that it may well not be accurate, then there would usually arise an evidentiary burden upon the Crown to lead some evidence to support the accuracy of that record: R v Johnson (unrep, 20/10/87, NSWSC) Hunt J.

It should be noted that in the case of offences to which s 8A–8B or 8F and a granted bail to which ss 8C or 8E applies, the court may consider any matter which the court considers as relevant to the question of whether bail should not be refused: s 32(6).

Note:

that s 32 considerations are to apply to offences to which ss 9C and 9D apply (s 32(7)), but does not prevent consideration of any matter accepted by the authorised officer or court as relevant to the question of whether bail should be granted under that section.

To top [20-220] Periods for which bail may be granted in Local Court — s 6

Bail may be granted to a person for:

1. 

The period between the person being charged with the offence and the person’s first appearance before a court for the offence.

2. 

The period between committal for trial or sentence and being brought before the Supreme Court or District Court consequent on the committal.

3. 

The period of any adjournment or adjournments, including any adjournment during the course of a trial and any period deemed by s 16 to be the period of an adjournment.

4. 

The period of a stay of execution of a conviction or sentence.

5. 

The period between the lodging of an appeal and its determination, being an appeal against a conviction or order, or against the severity of the person’s sentence.

6. 

The period between entering into a recognizance to prosecute proceedings in respect of a stated case and appearance to abide the decision in those proceedings or appearance before the magistrate.

7. 

The period between the determination of an appeal and appearance before a court to abide the decision on the appeal or the commencement of a new trial ordered on the appeal.

8. 

The period during which an application for revocation, extension or amendment of a community service order (within the meaning of the Community Service Orders Act 1979) or a children’s community service order (within the meaning of the Children (Community Service Orders) Act 1987) is pending.

9. 

The period between a person being found guilty of an offence under s 24(1) Children (Community Service Orders) Act and the person appearing pursuant to that Act, before the court that made the children’s community service order, within the meaning of that Act, to which the person is subject.

10. 

The periods between the making of an application to annul a conviction or sentence under ss 4, 5 and 8 Crimes (Appeal and Review) Act 2001 and the hearing of the application: s 6(g4) and (g5).

11. 

The period between an application for review under s 45 Children’s (Criminal Proceedings) Act 1987 of a decision in respect of an offence and the determination of the application.

12. 

The period between an application for review under s 45 Children’s (Criminal Proceedings) Act of a decision in respect of an offence and any further proceedings on the CAN issued in relation to the offence.

13. 

The period between a person being referred to the Drug Court under s 6 Drug Court Act 1998 and being brought before the Drug Court.

14. 

The period between the transfer of a back-up or related offence being transferred under s 166(1)(b)(ii) Criminal Procedure Act from the Local Court to the court to where the person has been committed for trial and the accussed’s appearance before that court: cl 4 Bail Regulation 2008.

15. 

The period between the trial court remitting a back-up or related offence to a Local Court under s 169 Criminal Procedure Act and the accussed’s appearance before the Local Court: cl 4 Bail Regulation 2008.

Note:

see DPP (Cth) v Heagney (1990) 19 NSWLR 651 at 654 where it was held that the Bail Act entitles a magistrate to grant bail only:

(a) 

where the hearing of a charge is pending, or

(b) 

as an incident of the act of committal for trial (or sentence). A magistrate may not grant bail after committal where bail had been refused. “Where a magistrate has committed an accused for trial and dealt with bail he has no further functions to perform”.

Restrictions on imposing bail conditions — s 37

Section 37(1) Bail Act requires unconditional bail be granted unless a court concludes conditions should be imposed for the purpose of:

(a) 

promoting effective law enforcement

(b) 

the protection and welfare of any specially affected person

(c) 

the protection and welfare of the community, or

(d) 

reducing the likelihood of future offences being committed by promoting the treatment or rehabilitation of an accused person.

Section 37(2) states that conditions shall not be imposed that are any more onerous for the offender than are required:

(a) 

by the nature of the offence

(b) 

for the protection and welfare of any specially affected person, or

(c) 

by the circumstances of the offender.

The Parliament has legislated with effect from 20 November 2012 to allow for the imposition of enforcement conditions requiring a person to comply whilst on bail with specified direction(s) given by a police officer for the purpose of monitoring or enforcing compliance with an “underlying bail condition”: s 37AA. It had previously been held in Lawson v Dunlevy [2012] NSWSC 48 that conditions, such as requiring a defendant to make themselves available to police at the front door for a curfew compliance check or breath test which is intended to enable proof of breach of a bail agreement or to deter a breach of bail, were not lawful as they neither directly or indirectly addressed an issue of law enforcement and so could not be said to fall within the purpose of promoting effective law enforcement.

Section 37(2A) requires a court to be satisfied that a bail condition is appropriate having regard to any intellectual disability of an accused person before imposing a bail condition: s 37(2A) inserted by Bail Amendment Act 1998.

Intellectual disability (s 37(5)) means a significantly below average intellectual functioning (existing concurrently with two or more deficits in adaptive behaviour) that results in the person requiring supervision or social rehabilitation in connection with daily life activities.

Reasons to be recorded — s 38

The court is required to record or cause to be recorded the reason for a bail decision where:

  • bail is refused

  • bail is granted to a person accused of an offence to which s 8A, 8B, 8C, 8F, 9C or 9D applies

  • bail is granted conditionally

  • the accused has requested that bail be granted on certain conditions and other conditions are imposed.

A Form 8 is not required to be completed by the magistrate where unconditional bail is allowed.

To top [20-240] Arrangements with courts in other States or Territories

Section 39A enables agreements, acknowledgements and deposits of security or money with respect to bail conditions imposed by a NSW court to be made with or to a court in another State or Territory: s 39A.

To top [20-260] Limitation to length of adjournments where bail refused

In the Local Court, the length of time for which a matter may be adjourned where a person is bail refused in respect of an offence is limited to a period not exceeding eight clear days except with the consent of the person, and consent must not be sought unless he or she is advised by the magistrate whether or not bail will be granted and on what conditions: s 25.

Note:

This does not apply if the person is in custody on another offence, there are reasonable grounds for a longer adjournment and the accused will be in custody for the longer period.

To top [20-280] Conditions of bail and breach thereof

Bail may be granted unconditionally or subject to conditions imposed by instrument in writing: s 36(1) (also subject to ss 36A and 36B, see below). A notice of the undertaking, agreement or acknowledgement must be in writing and given to the relevant person: s 54.

A condition may be imposed that the accused person enter into an agreement to observe specified requirements as to his or her conduct (s 36(2)(a)), but conditions shall not be more onerous than are required (s 37) and should be such, in the court’s opinion, as would warrant arrest on breach.

Section 36 makes provision for an acceptable person to enter into an agreement, acknowledgement or deposit security, and s 39 makes provision for this to be done at the court to which the bail undertaking is given.

Rehabilitation conditions have been given legislative approval. Section 36(2)(a) permits an accused to be placed on non-financial conditions.

Section 36(2)(a1) allows the accused person to enter into an agreement to reside, while at liberty on bail, “in accommodation for persons on bail”.

Section 36(2A) provides:

“In considering whether to impose a condition referred to in subsection (2)(a1), the authorised officer or court is to consider whether placement in accommodation for persons on bail is available and suitable for the accused person. In considering the suitability of placement, the authorised officer or court is to have regard to the background of the accused person, particularly if the accused person is an Aboriginal person or a Torres Strait Islander.”

Section 36(2B) provides:

“The Minister for Corrective Services is to ensure that adequate and appropriate accommodation for persons on bail is available for the purposes of the placement of persons on bail.”

The legislative power to make the appropriate regulations for the purposes of s 36(2B) is s 69. This section authorises the Governor to make regulations in relation to the requirements for accommodation for the purposes of s 36(2)(a1).

Note:

s 36(2)(i) has given legislative effect to another common practice of courts requiring surrender of passport; “that the accused person surrender to the authorised officer or court any passport held by the person”.

Suitability as surety or sufficiency of security

Section 36(3) provides:

“The determination as to:

(a) 

which person or persons, or class or description of persons, are acceptable persons for the purposes of a condition referred to in subsection (2)(b), (d), (f) or (h) and the number of acceptable persons required for those purposes, or

(b) 

the nature and sufficiency of security that is acceptable security for the purposes of a condition referred to in subsection (2)(e) or (f),

shall be made by:

(c) 

the authorised officer or court imposing the condition, or

(d) 

in the absence of a determination by the officer or court referred to in paragraph (c) — the officer or court to whom the bail undertaking is given.”

Additional bail conditions for drug/alcohol assessment/treatment/ rehabilitation — s 36A

If it is determined that the applicant would benefit from undergoing assessment, treatment or rehabilitation for drug or alcohol abuse, conditions may be imposed that the applicant subject himself or herself to an assessment of the persons capacity and prospects for drug or alcohol treatment or rehabilitation, or to participate in a program for same: s 36A.

Additional bail conditions as to non-association and place restriction — s 36B

Conditions may be imposed prohibiting or restricting the applicant from associating (be in company with or communicate including email) with a specified person or frequenting or visiting a specified place or district: s 36B.

Offences occasioning death and passport requirement

Bail is not to be granted to a person who is accused of an offence occasioning death otherwise than subject to a condition requiring the person to surrender any passport. However, if the person satisfies the court that in the circumstances of the case the court should give a direction that bail be granted without the condition of surrender, this power vests in a court: see s 37A.

To top [20-300] Applications, variations and review of bail

Formerly, there was no limit to the number of bail applications which could be made by a person in custody. Section 22A now strictly limits the circumstances in which an earlier decision to refuse bail can be reviewed: Power to refuse to hear bail application — s 22A at [20-080].

However, the power to review or vary bail where a person has an earlier grant of bail would appear to be unaffected by the introduction of the 2007 amendments to ss 22A and 48.

A magistrate may review his or her own decision or that of another magistrate (s 44) and the Supreme Court also has power to review: s 45.

The power to review may only be exercised at the request of the accused person, the informant, being a police officer, the informant or complainant (whether or not a police officer) in the case of bail granted in respect of a domestic violence offence or an application for an order under the Crimes (Domestic and Personal Violence) Act 2007, the Attorney General or the Director of Public Prosecutions and includes the power to affirm, vary or substitute another decision: s 48.

Note:

a magistrate is not given the power to initiate a bail review.

A review of bail must be done in strict compliance with the Bail Act: see R v Winningham (1995) 2 Crim LN 33; R v Gibson (unrep, 3/2/04, NSWSC) Sully J. That entailed the making of an application for such a review by one of the persons specified under s 48(1)(a), the exercise of the power of review under s 44, affording both the Crown and the appellant a proper opportunity to be heard in relation to the proposed revocation of bail, and a decision made in accordance with factors set out in s 32.

The request is to be made in writing in the form approved by the Attorney General and notice of the time and place of hearing must be given to the applicant. The court may waive these requirements: reg 22 Bail Regulation 1999 and Form 11.

An accused may, therefore, make a fresh application or an application for a review, with a request to vary conditions. In either case, an informant should be notified. If a fresh application is made any surety would be discharged, and a further surety is required. The accused would remain in custody until such a person is forthcoming.

If a review with a request to vary is made, the surety must be notified, as a variation in conditions without the surety’s consent may vitiate his or her agreement.

Bail conditions may also be reviewed where a person has been granted bail but has remained in custody because of non-compliance with a condition: s 48A. Such a review may be exercised at the request of the accused person, of the court’s own motion, or at the request of a police officer (if the accused consents and the court is satisfied that the request was made for the purpose of benefiting the accused person).

Section 54(3A) requires notice of any alteration or variation of bail conditions to be given to any person who had entered into an agreement or made an acknowledgement pursuant to the bail conditions. This means that such a person will have the opportunity to apply for a discharge from liability under the agreement: s 54(3A).

To top [20-320] Section 25A — stay of magistrates’ decision to grant bail if review sought

This section applies to persons appearing on a:

  • first appearance, and

  • on a serious offence, and

  • when a police officer or legal practitioner appearing on behalf of the Crown immediately informs the court

  • that a request for a review of the magistrate’s decision is to be made to the Supreme Court.

A stay will not come into effect unless the applicant provides the magistrate with a copy of the written approval of an authorised officer or the Director of Public Prosecutions to seek a review in the Supreme Court at the same time as the applicant informs the magistrate of an intention to review: s 25A(1) and (2).

The stay continues until the application is dealt with otherwise it will expire at 4 pm, three business days after the stay was made: s 25A(3)(c). The person remains in custody pending the review. The Crown may also file a notice with the Local Court that it does not intend to proceed with a review in which case the stay is lifted: s 25A(3)(b).

What is a serious offence

Serious offence means:

(a) 

the offence of murder or any other offence punishable by imprisonment for life, or

(b) 

an offence under or mentioned in a provision of Pt 3 Crimes Act involving sexual intercourse, or an attempt to have sexual intercourse, with a person under the age of 16 years.

To top [20-340] Notice of persons in custody after bail granted — s 54A

Section 54A applies to a person who has been granted bail but remains in custody because conditions have not been met: s 54A(1).

A notice from the custodian of such a person is sent to the court to which the accused person has been remanded (s 54(2)) and must be given before the expiration of eight days after the person is received into custody: s 54A(4). Such notice is only required to be given once in respect of any particular grant of bail: s 54A(5).

On receipt of such a notice, a magistrate will inform the registrar of the court of what action, if any, is to be taken, for example, to have the matter relisted for the purposes of a review of bail.

The aim of s 54A is to prevent persons remaining in custody where the magistrate had been informed that certain conditions for bail could be met, although the magistrate at the time might have considered alternative conditions. When the former conditions cannot be met due to some change in circumstances, the court might consider different conditions which would satisfy the objects of the Bail Act and allow the person to be released on bail.

To top [20-360] Acceptable person

The usual course is to leave the determination as to whether a particular person is an acceptable person for the purposes of s 36 to the justice of the peace who admits the applicant to bail. Section 36(3) provides that the court may make a determination as to which person or persons or class or description of persons are acceptable persons. (In addition, following the decision of the Court of Appeal in Re B [1981] 2 NSWLR 372, the acceptable person is asked to confirm that any money deposited is his or hers, and to produce evidence of ownership. If he or she is to forfeit money (even with the provision of security), he or she is asked to identify the financial resources from which he or she will be able to pay if the applicant fails to comply with the bail undertaking.)

To top [20-380] Discharge of surety

Application for discharge from liability may be brought by a person entering into an agreement under ss 36(2)(d), (f) or (h), 42(1).

If the accused is not then before the court or otherwise in custody (s 42(2)), an authorised justice shall issue a warrant or a summons: s 42(2).

On the appearance of the accused, the matter is dealt with as provided for by s 42(3) and (4); surety may be discharged and further conditions may be imposed on bail.

If an accused person fails to comply with his or her bail undertaking, the amount agreed to be forfeited by the surety may be recovered as a debt due to the Crown: Pt 7A.

To top [20-400] Continuing bail — s 43

In R v Peehi (CCA) (1997) 41 NSWLR 476; 92 A Crim R 539, it was contended that s 43(3) had the effect that the defendant remained on bail during a hearing and was not in custody. The court held that this was not correct and the section should be read in light of s 43(1) which empowers a court to continue bail already granted where there had been an undertaking to appear at any time and place at which the proceedings may be continued. The purpose of subs (3) is to ensure that bail is continued at the time of any adjournment of the hearing should the court omit to make any specific order: see also s 16A(2).

To top [20-420] Variations generally

Following the decision of the Court of Appeal in Thomakakis v Sheriff of NSW (1993) 33 NSWLR 36, it is important to ensure that the requirements of the Note to question 10 of the Form “Application for alteration of existing bail conditions are complied with”. It reads:

“Note

If a surety was involved, unless the surety appears in person at the hearing of this application and consents to it, you will be required to produce at court at the hearing of this application:

(a) 

evidence of notification of the surety of the date of listing of this application and of the nature of the variation sought; and

(b) 

the written consent of the surety to that variation.”

The decision of the Court of Appeal appears to assume that the rights of an acceptable person who enters into an agreement pursuant to s 36 are co-extensive with those of a surety at common law; but see s 61 and Whan v McConaghy (1984) 153 CLR 631 at 638.

To top [20-440] Failure to appear

If an accused fails to appear in accordance with a bail undertaking, an endorsement upon the bail undertaking is required.

Under the provisions of s 60(3), such a certificate is prima facie evidence of the matters so certified (including non-appearance: s 60(3)(c)).

A person who fails without reasonable excuse (proof of which lies on the person) to appear in accordance with his or her bail undertaking is guilty of an offence (s 51(1)) and liable to the same penalty as is provided for the offence for which the person failed to appear (not to exceed three years imprisonment or $3000): see s 51(2).

Forfeiture after conviction for offence of failing to appear — s 53AA

Section 53AA provides:

“(1) 

On the conviction of a person for an offence under section 51, any bail money agreed to be forfeited under a bail agreement associated with the bail undertaking concerned is forfeited and a forfeiture order is taken to have been made under this Part by the court that convicted the person.

(2) 

This section does not affect any right to make a forfeiture order under section 53A in relation to a person accused of committing an offence under section 51.”

Hearing of formal objections to deemed forfeiture orders — s 53DA

Section 53DA provides:

“(1) 

A Local Court to which an objection to the confirmation of a forfeiture order taken to have been made under section 53AA is duly made must conduct a hearing to determine whether or not the order should be confirmed.

(2) 

After conducting a hearing, the Local Court must confirm the forfeiture order unless it is satisfied as referred to in subsection (3).

(3) 

If the Local Court is satisfied that in the circumstances of the case it would be unjust for the forfeiture order to be confirmed in full in respect of a particular person affected by the order, the Local Court:

(a) 

may vary the order so as to reduce the amount of bail money to be forfeited by that person, and

(b) 

in that event, must confirm the order as so varied.

(4) 

The Local Court may be satisfied that it would be unjust for a forfeiture order to be confirmed in full in respect of a particular bail guarantor if it is satisfied that the guarantor took all reasonable steps to ensure that the accused person complied with the relevant bail undertaking.”

Reasonable excuse for non-appearance

In McCall v Werry (unrep, 2/4/82, NSWSC) Roden J stated at p 8–9, it is not only circumstances:

“… that make it impossible for the accused to attend that could operate as a reasonable excuse for the purposes of the section.

It is appropriate in every case to hear any explanation advanced by a person charged with this offence and then to determine whether it constitutes a reasonable excuse”.

Arrest following breach

Where a police officer arrests a person following his or her breach of a condition imposed upon his or her bail and takes that person before the Local Court, the magistrate has unlimited power to remand the person in custody and, if the person has not yet been committed for trial or sentence, he or she has power also to grant fresh bail. If the person has been arrested pursuant to s 50, the magistrate has power to deal with the arrested person in the way provided by that section even though he or she has been committed for trial or sentence.

However, where bail has been granted by the Supreme Court, the Local Court may refuse to deal with a person brought before it by a police officer by continuing, varying or revoking bail and is not deprived of jurisdiction simply because the original bail was granted by the Supreme Court: see R v Cooper (unrep, 15/1/92, NSWSC) where Hunt CJ at CL said at p 4:

“The limitations imposed by s 24 upon a magistrate’s power to grant bail to any person appearing before him where he has already committed for trial or sentence are made subject to s 50. The Local Court thus has power under s 50 to deal with the arrested person in the way provided by that section even though the original bail was granted by the Supreme Court.”

See also s 24(4) which provides that s 24(1) does not prevent the grant of bail to a person by a magistrate or justice where the person is apprehended under a bench warrant (as referred to by s 312 Criminal Procedure Act) notwithstanding that the person has appeared before the District Court or Supreme Court.

Persons arrested on warrants for sentencing

Section 17(3) directs a police officer not to grant bail (except under exceptional circumstances (s 17(4)) to a person who has been arrested pursuant to a warrant to bring the person before a court for sentencing and any such person must be brought before a court as soon as reasonably practicable.

Court record

The regular practice in matters under s 51 has been for the prosecution to tender what is described as the “court record”, but this has been the subject of adverse comment in McCall v Werry. Roden J said at p 8:

“The circumstances of this case however illustrate the importance of properly noting all the exhibits, and also the desirability of proving a fact such as that a person charged had entered a bail undertaking, in the usual manner by the production of the document and the proof of its signature, or by any means expressly authorised by law such as in this case the provision of s 60 of the Bail Act.”

Section 60 provides that certain documents are admissible in evidence and are prima facie evidence of the making of the acknowledgement and of its terms.

To top [20-460] Enforcement of bail agreements

If the accused fails to comply with a bail undertaking and has entered into an agreement to forfeit money, this may be recovered as a debt due to the Crown: see Pt 7A.

Return of sureties — s 63

Section 63 provides:

“(1) 

If bail money or a bail security has been deposited in connection with proceedings for an offence, and a finding is made that the accused person is guilty or not guilty of the offence, the court must, if it has not previously done so, consider whether to make an order for the return of the money or security or a forfeiture order (if applicable).

(2) 

Words and expressions in this section have the same meanings as they have in Part 7A.”

To top [20-480] Foreign passports

Where an applicant holds a foreign passport and conditions of granting bail include the surrender of such passport and an undertaking not to apply for a new passport, the court may make the following order: see also s 37A.

To top [20-500] Bail security — land

At times an accused will indicate that he or she or an acceptable person is prepared to offer real estate as security in a bail agreement. The value of the property should be stated and supported, where appropriate, by a certificate of valuation.

The magistrate should complete the determination (Form 8 at [20-540]) in accordance with s 36(3), nominating the person(s) who is an acceptable person(s) and details of the real estate to be accepted as security.

The lodgement of a certificate of title does not create a charge over the land, therefore in the s 36(3) determination the following order is suggested:

Old system: As to the first option the documents referred to will be the appropriate documents as to title together with an appropriate Memorandum of Agreement where necessary.

Second mortgage: A Memorandum of Agreement should be required to be lodged in the relevant register together with a caveat.

To top [20-520] Bail on appeal — procedure

Bail where appeal lodged on day of conviction

If bail is not sought, a determination is not required, and the appellant remains in custody.

If the appellant is present before or at the court of conviction, an oral application for bail can be made. This application may be heard by any magistrate, but preferably before the convicting magistrate.

The application can be determined in chambers (s 23(b)), but where bail might be refused or granted in substantially different terms, the appellant should be bought before the court to give the appellant an opportunity to be heard prior to determination.

Bail where appeal lodged after day of conviction

If an appeal is lodged after the date of conviction, an appellant seeking bail or a person on his or her behalf must make a bail application in writing (Form 3).

On receipt of Form 3, arrangements will be made to have the appellant brought before the court of conviction, preferably before the convicting magistrate, or, if undue delay, difficulties or expense is involved in so doing, the appellant should be brought before a court nearest to where the accused is held in custody.

Bail review pending appeal

If the appellant is refused bail or cannot meet the conditions, he or she may make an application to any Local Court for bail review at any time prior to him or her appearing in the District Court. Arrangements can be made to have the appellant brought before a court to be heard before any magistrate presiding at that court. Once the appellant has appeared before the District Court, the Local Court no longer has power to hear the application: s 24(1).

To top [20-540] Form 8 — Suggested bail form for use at court

Bail Act 1978

Summary of Reasons for Bail Decision by Court

Sections 32, 36, 37, 36A and 36B

Name of accused: ..........................................

Offence(s):

H....................................... (Seq ......to......) H.......................................... (Seq ......to......)

H....................................... (Seq ......to......) H.......................................... (Seq ......to......)

 

Determination

It is determined (in respect of each offence) that:

[ ] (1) bail be granted unconditionally;

[ ] (2) bail be refused; or

[ ] (3) bail be granted, subject to one or more of the following conditions: s 37.

[ ] promoting effective law enforcement [ ] protection and welfare specially effected person
[ ] protection/welfare of the community

(a)

that the accused person enter into an agreement to observe requirements as to his/her conduct while at liberty on bail, namely:

  • report personally to OIC of Police at .......................................... daily/ .......... times per week on:

[ ] Mon [ ] Tues [ ] Wed [ ] Thurs [ ] Fri [ ] Sat [ ] Sun, between the hours of .............. and ..............

  • reside at ..........................................

and notify informant of any proposed change of address 24 hours prior to moving;

  • report to the Probation and Parole Service at .................... within .................... and accept all reasonable directions;

including directions for the preparation of a home detention assessment.

(a1)

that the accused person enter into an agreement to reside, while at liberty on bail, in accommodation for persons on bail;

(b)

that one (or     ) acceptable person(s) acknowledge in writing that he/she/they are, acquainted with the accused person and he/she or they regard(s) the accused person as a responsible person who is likely to comply with the undertaking;

(c)

that the accused person enter into an agreement, without security, to forfeit an amount of money, namely $         if the accused person fails to comply with his/her bail undertaking;

(d)

that one (or     ) acceptable person(s) enter into an agreement or agreements, without security, to forfeit an amount/amounts of money, namely $         (each) if the accused person fails to comply with his/her bail undertaking;

(e)

that the accused person enter into an agreement and deposit security, to forfeit an amount of money, namely $         if the accused person fails to comply with his/her bail undertaking;

(f)

that one (or     ) acceptable person(s) enter into an agreement and deposit security, to forfeit an amount/amounts of money, namely $         (each) if the accused person fails to comply with his/her bail undertaking;

(g)

that the accused person deposit the sum of $         in cash and enter into an agreement to forfeit such amount if the accused person fails to comply with his/her bail undertaking;

(h)

that one (or     ) acceptable person(s) deposit the sum(s) of $         (each) in cash and enter into an agreement to forfeit such amount(s) if the accused person fails to comply with his/her bail undertaking;

(i)

that the accused person surrenders his/her passport to the Clerk of the Court at ................................................................ within ................................................................

36A

that the accused person enter into an agreement:

(a) 

to subject himself/herself to an assessment as to capacity and prospects for drug and/or alcohol treatment and/or rehabilitation at ......................................................................... and to report to ............................................ for the purpose of such assessment within ............ days;

(b) 

to participate in a drug/alcohol treatment or rehabilitation program..........................................

36B

that the accused person enter into an agreement:

(a) 

not to associate with .......................................... ;

(b) 

not to enter ..........................................


Prosecution

Accused/Appellant

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

..........................................

Reasons for determination

The reason(s) for the decision is/are:

[ ] No application for bail by accused person

[ ] Presumption

[ ] In favour

[ ] No presumption

[ ] Against

 

[ ] Domestic violence offence   [ ] Contravene ADVO involving violence, stalking or intimidation   [ ] On bail

[ ] On parole

[ ] Serving sentence

[ ] On good behaviour bond

[ ] Convicted F.T.A.

[ ] Convicted of indictable offence

 

Prosecution case

[ ] Strong

[ ] Weak

[ ] Accused person unlikely to appear if granted bail/unconditional bail because of

[ ] Background and community ties

[ ] Strong

[ ] Weak

[ ] None

[ ] Antecedents

[ ] Lengthy

[ ] Limited

[ ] Nil

[ ] Previous FTA/NBC ..........................................

[ ] Nature of offence

[ ] Serious

[ ] Minor

[ ] Violent

[ ] Sexual

[ ] Probable penalty

[ ] Custodial

[ ] Non custodial

[ ] Specific evidence of likely non-appearance ..........................................

 

[ ] Interests of accused

[ ] Time in custody

[ ] Preparation of defence

 

[ ] Medical

[ ] Family

[ ] Work

[ ] Special needs

[ ] Need for physical protection

 

[ ] Protection of

[ ] Victim

[ ] Relatives of victim

[ ] Other specially affected person

 

[ ] Protection of the community

[ ] Nature and seriousness of offence(s)

[ ] Prior breach of bail

 

[ ] Interference with witnesses

[ ] Likelihood of other serious offences

[ ] On bail

 

[ ] Charge involves possession or use of offensive weapon or instrument

 

[ ] Accused would benefit from

[ ] Assessment

[ ] Treatment

[ ] Rehabilitation for

     

[ ] Drug misuse

[ ] Alcohol misuse

 

[ ] Short adjournment

[ ] Section 11 adjournment

 

[ ] Appeal against conviction and/or penalty following custodial sentence

[ ] Prospect of appellant answering bail

[ ] Probable

[ ] Unlikely

[ ] Prospect of appellant committing further serious offences if granted bail

[ ] Probable

[ ] Unlikely

 

Local Court ..........................................

Magistrate .......................................... Date ....................................

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