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The Bail Act 2013

[20-000] Introduction
[20-002] Legislative purpose of the Act — s 3
[20-004] What is bail? — s 7
[20-020] Bail decisions that may be made
[20-022] Persons for whom a bail decision may be made
[20-024] Duration of bail — s 12
[20-026] Bail applications that may be made
[20-028] Power to hear bail applications
[20-030] Bail decision on first appearance upon court’s own motion — s 53
[20-032] Jurisdictional issues and restrictions on the Local Court
[20-034] Deferral of bail decision due to intoxication — s 56
[20-036] Applications to be dealt with expeditiously
[20-040] Practical application of the Bail Act
[20-042] Rules of evidence do not apply to bail proceedings — s 31
[20-044] Standard of proof in proceedings relating to bail — s 32
[20-046] The test to be applied by a court
[20-048] The unacceptable risk test — s 17
[20-060] Procedure for conditional release
[20-062] General rules for bail conditions — s 24
[20-080] Procedure where bail is refused
[20-082] Limitations on the length of adjournment where bail is refused — s 41
[20-084] Multiple applications for release following a decision to refuse bail — s 74
[20-086] Discretionary grounds to refuse to hear a bail application — s 73
[20-088] Procedure for fresh application — s 75
[20-100] Procedures following a grant of bail
[20-102] Procedure if accused granted bail but remains in custody
[20-104] Stay of magistrate’s decision to grant bail for certain serious offences — s 40
[20-106] Bail acknowledgments
[20-108] Requirement to appear — s 13
[20-120] Enforcement of bail requirements
[20-122] Failure to comply with bail conditions or bail acknowledgments — ss 77, 78
[20-124] Procedure for determination under s 78
[20-126] Failing to appear — s 79
[20-140] Variation of bail
[20-142] Bail variation on the court’s own motion on first appearance — s 53
[20-144] Interested persons who may make a variation application — s 51
[20-146] Notice requirements for variation applications
[20-160] Bail guarantors
[20-162] Variation applications affecting bail guarantors
[20-164] Application by bail guarantor to be discharged from liability — s 83
[20-180] Bail on appeal
[20-200] Transitional provisions

To top [20-000] Introduction

The Bail Act 2013 commenced on 20 May 2014.

This chapter will not provide a comparison of sections of the repealed Bail Act 1978 with the current Bail Act 2013. An entirely new approach to bail now applies in NSW.

The Act utilises new terminology. Only the following applications may be made:

  • release application

  • detention application

  • variation application.

The parliamentary intention of the Act is clearly illustrated in the Second Reading Speech, Bail Bill 2013, Legislative Assembly, 1 May 2013, p 19838–9. The Hon Mr Greg Smith SC, Attorney General and Minister for Justice stated:

“However, rather than implement a justification approach to bail, as favoured by the Law Reform Commission, the Government decided to adopt a risk-management approach to bail decision-making. The bill has been drafted in accordance with the Government response and its key feature is a simple unacceptable-risk test for bail decisions. This test will focus bail decision-making on the identification and mitigation of unacceptable risk, which should result in decisions that better achieve the goals of protection of the community while appropriately safeguarding the rights of the accused person.

A significant feature of the bill is that it operates without the complex scheme of offence-based presumptions contained in the existing Act.”

[20-002] Legislative purpose of the Act — s 3

3

Purpose of Act

(1)

The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions.

(2)

A bail authority that makes a bail decision under this Act is to have regard to the presumption of innocence and the general right to be at liberty.”

[20-004] What is bail? — s 7

Bail is defined in s 7 of the Act as “authority to be at liberty for an offence”, subject to limitations in s 14: s 7(1). Bail can be granted to any person accused of an offence: s 7(2).

Section 14 limits that entitlement in the following manner:

  • bail is not met until a person signs a copy of a bail acknowledgment and it is given to a bail authority and all pre-release requirements for bail (including character acknowledgments under s 27) are met: s 14(1)

  • a person is not entitled to be at liberty on those occasions the person is required to appear before a court: s 14(2).

To top [20-020] Bail decisions that may be made

Generally, the court may make a decision to:

  • dispense with bail, if there is no unacceptable risk: ss 8(1)(b), 10, 18(b)

  • grant bail without the imposition of conditions, if there is no unacceptable risk: ss 8(1)(c), 11, 18(c)

  • grant bail with the imposition of conditions, if there is an unacceptable risk but it can be sufficiently mitigated by the imposition of conditions (ss 8(1)(c), 11, 19, 24), or

  • refuse bail, if there is an unacceptable risk that cannot be sufficiently mitigated by the imposition of conditions: ss 8(1)(d), 11, 20.

Under s 85(1), a court may also revoke bail when bail security deposited under a bail condition is no longer intact. The court cannot revoke bail unless the person has been given written notice (s 85(4)) and 28 days to demonstrate to the court either that the bail is still intact or to arrange for the deposit of replacement security: s 85(3)(b).

[20-022] Persons for whom a bail decision may be made

A bail decision may be made in respect of a person accused of an offence: s 8(1).

Bail decisions may also be made for the following persons who are not accused of any offence: s 8(3) and Sch 1 of the Act:

  • proceedings for a failure to comply with conditions of a good behaviour bond

  • Children’s Court proceedings for failure to comply with good behaviour bonds, probation orders or outcome plans under the Young Offenders Act 1997

  • applications to extend/revoke community service orders for adults and children

  • persons arrested by warrant for failing to comply with subpoenas or non attendance as witnesses under the following Acts: Children and Young Persons (Care and Protection) Act 1998, Coroners Act 2009 and the Criminal Procedure Act 1986

  • persons arrested under an interstate arrest warrant, s 88 Service and Execution of Process Act 1992 (Cth).

Note 1.

Bail decisions cannot be made if substantive proceedings for an offence have concluded and no further substantive proceedings are pending: s 8(2).

Note 2.

The Bail Act 2013 does not apply to overseas extradition proceedings: see s 49B Extradition Act1988 (Cth).

Note 3.

Nor does the Bail Act apply to those offences in the Criminal Code (Cth) set out in s 15AA Crimes Act 1914 (Cth), which provides for a presumption against bail for particular Commonwealth offences.

[20-024] Duration of bail — s 12

Once bail is granted, it operates until either it is revoked, or the substantive proceedings are concluded: s 12(1). For that reason, there is no longer a requirement to order “bail to continue”.

Under s 12, bail is deemed to continue until the proceedings are concluded. Section 6 defines the “conclusion of proceedings” to include:

  • disposition of the proceedings

  • when a person has been convicted and sentenced for an offence.

Note:

Committal for trial or sentence is not the conclusion of proceedings in relation to bail: s 6(3). Bail continues to operate.

See also Bail on appeal at [20-180].

[20-026] Bail applications that may be made

Only the following three applications may be made under the Act:

  • a release application — which may be made by the accused person under s 49 for bail to be granted or dispensed with

  • a detention application — which may be made by the prosecutor under s 50 for the refusal or revocation of bail, or

  • a variation application — which may be made by any “interested person” as set out in s 51 for a variation in bail conditions.

Section 16 sets out the key features of a bail decision and defines:

[20-028] Power to hear bail applications

The Act contains general provisions as to when a court has the power to hear a bail application:

  • proceedings for the offence are pending in that court: s 61

  • the court has convicted the person of the offence and an appeal against the conviction or sentence is pending in another court but the person has not yet made their first appearance before the other court: s 62

  • the application is for the variation of a bail decision made by the court: s 63.

Section 64 sets out powers specific to the Local Court (which includes where relevant the Children’s Court and the Drug Court) to hear:

  • a release application or detention application in respect of a person who is:

    • accused of an offence, where the person is brought or appearing before the court, or

    • an appellant from a decision of the Local Court to the District Court, Land and Environment Court or Supreme Court under the Crimes (Appeal and Review) Act 2001, where the person is not brought or appearing before the court: s 64(1)

  • a bail application where a bail decision has been made by an authorised justice or police officer: s 64(3)

  • a variation application where a bail decision has been made by a higher court (although pursuant to s 57(1), where a higher court has imposed a bail condition that it has directed is not to be varied, such a condition may only be varied with the consent of the accused person and the prosecutor): s 64(4).

[20-030] Bail decision on first appearance upon court’s own motion — s 53

A court may, of its own motion, grant bail to a person on the first appearance even if a release application is not made. This power is discretionary and is only to be exercised to benefit the accused person.

Note:

this provision may be utilised where a self-represented person appears in custody. The court may take into account the nature of the charge and the reasons outlined by a police officer or authorised justice for refusing bail.

[20-032] Jurisdictional issues and restrictions on the Local Court

The Act restricts the jurisdiction of the Local Court in the following areas:

  • No jurisdiction to hear a bail application if a person has made their first appearance before the District or Supreme Court: s 68(1). This is subject to the exceptions under s 68(2), that is, when a person has been arrested under a bench warrant or an offence has been remitted back to the Children’s Court or Local Court following proceedings in the District Court or Supreme Court.

  • If a person has appeared before the Supreme Court for a bail application, the Local Court may only hear a further bail application if:

    • the substantive matter is still before the Local Court, and

    • the person appears, and

    • the court is satisfied special facts and circumstances justify the hearing of the bail application: s 69(1)

  • Where a bail decision of a superior court has directed that bail not be varied, this may only be done where both parties consent: s 57.

Note:

under s 78, the Local Court has jurisdiction to hear and determine proceedings for a failure to comply with a bail acknowledgment or bail conditions that relate to Supreme Court or District Court bail: see Enforcement of bail requirements at [20-120].

[20-034] Deferral of bail decision due to intoxication — s 56

The court may defer making a bail decision where the person is intoxicated. Section 4 defines an intoxicated person as someone who “appears to be seriously affected by alcohol or another drug or a combination of drugs”.

A court may adjourn the proceedings for no longer than 24 hours. In that circumstance, the court is to issue a warrant remanding the person to a correctional centre or other place of security until further hearing of the matter.

Note:

It is suggested confirmation is sought with the relevant custody authority on the record that the person’s presentation as “intoxicated” is not due to other possible medical reasons.

[20-036] Applications to be dealt with expeditiously

Section 71 requires a bail application to be dealt with “as soon as reasonably practicable”.

An application by an accused person on their first appearance for a release or variation application in the substantive proceedings for an offence must be heard: s 72(1).

A court is not to decline to hear the application because notice has not been given to the prosecutor, but may adjourn the hearing in order to enable notice to be given to the prosecutor if this has not occurred and the court considers it necessary in the interests of justice: s 72.

Note:

Where an application is received from a person in custody for a release application to be listed prior to the next adjourned date, the following should be considered:

  • the length of time the application may take

  • notice is required for other parties

  • the availability of the parties

  • available court dates and other listings

  • persons in custody should take priority over other listings.

To top [20-040] Practical application of the Bail Act

[20-042] Rules of evidence do not apply to bail proceedings — s 31

When exercising a function in relation to bail (except criminal proceedings for failure to appear or forfeiture of security proceedings) the court may “take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence”.

[20-044] Standard of proof in proceedings relating to bail — s 32

The test to be applied in bail decisions is on the balance of probabilities: s 32(1). However, this test does not apply to proceedings for an offence relating to bail: s 32(2).

Figure 1. Statutory flow chart for bail decisions — s 16

Statutory flow chart for bail decisions — s 16

[20-046] The test to be applied by a court

The test for a bail decision is a two-stage process:

1. 

Is there an unacceptable risk?

The first stage is to determine this issue considering only the criteria under s 17(3).

  • if no unacceptable risk: unconditional release

  • if yes, there is an unacceptable risk: the unacceptable risk identified must be clearly stated and recorded, and the second stage is to be considered.

2. 

If there is an unacceptable risk, can bail conditions sufficiently mitigate that risk?

Once an unacceptable risk is identified, the second stage is that the court must then consider whether specific bail conditions or bail conditions of a specific class can sufficiently mitigate the risk.

This is a separate test to a finding of whether there is an unacceptable risk. The decision of whether bail conditions can sufficiently mitigate the risk is made on the basis of all the information before the court and includes at that stage, what bail conditions may be available to be imposed.

The following extract from the Second Reading Speech, Bail Bill 2013 (see reference at [20-000], p 19840) illustrates the two-stage process:

“However, if the bail authority is satisfied that there is an unacceptable risk, it can either grant or refuse bail pursuant to proposed section 19. In deciding between these alternatives, the bail authority must determine whether or not the unacceptable risk or risks identified can be sufficiently mitigated by the imposition of bail conditions. If bail conditions can sufficiently mitigate the risk, then conditional bail will be granted.”

If bail conditions can sufficiently mitigate the risk, a person is released conditionally on bail. If not, bail is refused.

Note 1.

The importance of clearly identifying and recording what unacceptable risks are identified is emphasised in s 38:

  • if bail is refused, the court must record the reasons, including the unacceptable risk/s that have been identified: s 38(1). A person who is bail refused must, as soon as practicable, be given a written notice setting out the “terms of the decision”: s 34

  • if imposing bail conditions, the court must record why unconditional bail was not granted and the unacceptable risks identified for imposing bail conditions: s 38(2)

  • if a security or character condition is imposed the court must record its reasons: s 38(3)

  • if an accused person has requested certain bail conditions and the court impose different conditions, the reasons must also be recorded: s 38(4).

Note 2.

Section 38 requires that the reasons for refusing bail or imposing bail conditions e immediately recorded.

[20-048] The unacceptable risk test — s 17

Under s 17, before making a bail decision, the court is to consider whether there is an unacceptable risk that if released from custody the accused person will:

(a) 

fail to appear at any proceedings for the offence (as defined in s 5(1))

(b) 

commit a serious offence (having regard to the non-exhaustive list of considerations set out in s 17(4)

(c) 

endanger the safety or victims, individuals or the community, or

(d) 

interfere with witnesses or evidence.

Section 17(3) is an exhaustive list of considerations. The court must decide whether any of the risks enumerated in subsection (2) are unacceptable. In general, the items in the list are expressed in neutral terms and may thus operate either for or against the existence of a risk and/or whether that risk is unacceptable:

(a) 

The accused person’s background, including criminal history, circumstances and community ties.

(b) 

The nature and seriousness of the offence.

(c) 

The strength of the prosecution case.

(d) 

Whether the accused person has a history of violence.

(e) 

Whether the accused person has previously committed a serious offence while on bail.

(f) 

Whether the accused person has a pattern of non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds.

(g) 

The length of time the accused person is likely to spend in custody if bail is refused.

(h) 

The likelihood of a custodial sentence being imposed if the accused person is convicted of the offence.

(i) 

If the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success.

(j) 

Any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment.

(k) 

The need for the accused person to be free to prepare for their appearance in court or to obtain legal advice.

(l) 

The need for the accused person to be free for any other lawful reason.

The definition of serious offence

Section 17(4) sets out the matters a court is to consider in determining whether an offence (either the one charged or an offence likely to occur in the future) is a serious offence:

“(4) 

The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence (or the seriousness of an 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 an offensive weapon or instrument within the meaning of the Crimes Act 1900,

(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.”

Procedure where no unacceptable risk is identified — s 18

Where, upon the application of the test in s 17, no unacceptable risk is identified, the court may only make the following orders under s 18:

  • release the person without bail

  • dispense with bail

  • grant bail without any bail conditions (unconditional).

Procedure where there is an unacceptable risk/s — s 19

Where a finding has been made that there is one or more unacceptable risks, the court may make only the following decisions under s 19:

  • grant bail, with conditions in accordance with s 24, or

  • refuse bail.

Bail can only be refused if the bail authority is satisfied there is an unacceptable risk that cannot be sufficiently mitigated by imposing bail conditions: s 20(1).

Offences carrying a right to release — s 21

Despite a finding of an unacceptable risk, certain offences carry a right to release and bail cannot be refused s 20(2). Under s 21(1), the court may make only the following bail decisions for offences with a right of release:

  • dispense with bail, or

  • grant bail (with or without conditions).

A right to release applies to:

  • fine-only offences

  • offences under the Summary Offences Act 1988, other than:

    • obscene exposure (s 5), if the person has previously been convicted of an offence under that section

    • violent disorder (s 11A), if the person has previously been convicted of an offence under that section or a “personal violence offence” as defined in s 4, Crimes (Domestic and Personal Violence) Act 2007

    • offences relating to knives and offensive implements under ss 11B, 11C and 11E, if the person has previously been convicted of an offence under any of those sections or a personal violence offence

    • custody or use of a laser pointer in a public place (s 11FA), and

    • loitering by a convicted sexual offender near premises frequented by children: s 11G.

  • an offence that is being dealt with by way of a youth justice conference under Pt 5 Young Offenders Act 1997.

Note:

A right to release no longer applies to an offence where an accused person has previously failed to comply with a bail acknowledgment or a bail condition forming part of a bail decision for the offence: s 21(4).

A court before which a person appears or is brought following non-compliance with a bail acknowledgment or bail condition may refuse or revoke bail even where the offence is one for which there is a right of release, and there ceases to be a right of release if bail is revoked or refused in such circumstances: s 78(4).

To top [20-060] Procedure for conditional release

[20-062] General rules for bail conditions — s 24

Bail conditions can only be imposed to mitigate an unacceptable risk: s 24(1).

The bail conditions imposed must be reasonable, proportionate to the offence and appropriate to the unacceptable risk identified: s 24(2).

The bail conditions are not to be more onerous than necessary and compliance must be reasonably practical: s 24(3), (4).

Section 24 does not apply to an enforcement condition: see s 24(5).

Note:

A security requirement can only be imposed to mitigate an unacceptable risk of the person failing to appear. If a risk has not been identified, a condition of this kind cannot be imposed: s 26(5).

Table 1. Bail conditions that can be imposed

  Description When available
Conduct requirement: s 25

A requirement that the accused person do or refrain from doing anything (other than to provide security for compliance with a bail acknowledgment).

For example, a place restriction, or not to contact or approach certain persons, or not to drink alcohol.

When necessary to mitigate an unacceptable risk

Security requirement: s 26

A requirement that security be provided by the accused person, or an acceptable person/s for compliance with a bail acknowledgment. This is a form of pre-release requirement: see Pre-release requirement: s 29.

Such a condition may include:

  • an agreement to forfeit a specified amount of money if the accused person fail to appear

  • the deposit of a specified sum of money or other acceptable security with the court with an agreement that it be forfeited if the accused person fails to appear.

The court is to determine what amounts to “acceptable security”.

Only for the purpose of mitigating an unacceptable risk that the person will fail to appear, and only where that purpose is not likely to be achieved by one or more conduct requirements

Character acknowledgment: s 27

An acknowledgment given by an acceptable person to the effect that they are acquainted with the accused person and regard the accused person as a responsible person who is likely to comply with their bail acknowledgment.

The court is to determine what person/s or class/description of persons is an “acceptable person”.

Only where the purpose for imposing is not likely to be achieved by one or more conduct requirements.

Accommodation requirement: s 28

A requirement that suitable accommodation arrangements be made for the accused person before their release on bail. This is a form of pre-release requirement: see Pre-release requirement: s 29.

An accommodation requirement is complied with when the court is informed by an appropriate government representative that suitable accommodation has been secured.

Only available where the person is a child.

Note:

This condition cannot be imposed by a police officer.

Once imposed, a court must re-list the matter every two days, until the condition is met.

Pre-release requirement: s 29

A condition that must be complied with before the accused person is released on bail. This may only be either:

  • a conduct requirement that the person surrender their passport

  • a security requirement, or

  • an accommodation requirement.

Upon compliance with a pre-release requirement (as set out in s 29 or the regulations), the accused person is entitled to be released without any rehearing of the matter.

 
Enforcement condition: s 30

This condition can only be imposed by a court and only following an application by the prosecutor. For example, where a person has a bail condition not to consume alcohol, an enforcement condition may be imposed that the person be breath tested by a police officer at certain times/places.

A condition imposed for the purpose of monitoring or enforcing complying with another bail condition (the underlying bail condition) that requires the person to comply while on bail with one or more specified police directions given for that purpose.

An enforcement condition must specify:

  • the kinds of directions that may be given to the person while at liberty on bail

  • the circumstances in which each kind of direction may be given (so as to ensure compliance with the condition is not unduly onerous)

  • the underlying bail condition/s for which each direction may be given.

The general requirements of bail conditions set out in s 24 do not apply to enforcement conditions: s 24(5).

Only where considered reasonable and necessary, having regard to:

  • the person’s history (including their criminal history, particularly any serious offences or a large number of offences)

  • the likelihood/ risk of the person committing further offences while on bail

  • the extent to which compliance with any direction/s by the person may unreasonably affect another person.


To top [20-080] Procedure where bail is refused

Bail can only be refused where the court is satisfied an unacceptable risk cannot be sufficiently mitigated by the imposition of bail conditions: s 20.

Note:

Bail conditions must comply with s 24: see General rules for bail conditions — s 24 at [20-062].

When bail is refused the court must:

  • record the reasons, including the unacceptable risk/s that have been identified: s 38(1)

  • a person who is bail refused must, as soon as practicable, be given a written notice setting out the “terms of the decision”: s 34(1).

A court has a discretion to refuse bail when an accused person is brought before the court on a first appearance and no bail decision has been made or bail refused and no application has been made: s 54.

[20-082] Limitations on the length of adjournment where bail is refused — s 41

Unless an person who is bail refused consents, a magistrate may only adjourn the matter for a period of not more than 8 clear days.

The following exceptions to this requirement are set out in s 41(2):

  • the person is in custody for some other offence, and

  • the court is satisfied there are reasonable grounds for a longer period of adjournment, and

  • the person would be in custody for the other offence for the balance of the longer period.

[20-084] Multiple applications for release following a decision to refuse bail — s 74

A further release application is not permitted unless there are grounds to make another application. The following grounds are set out in subsection (3).

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

  • 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

  • circumstances relevant to the grant of bail have changed since the previous application was made, or

  • the person is a child and the previous application was made on a first appearance for the offence.

A further detention application is not permitted unless there is new information to be presented to the court or circumstances relevant to the grant of bail have changed: see s 74(4).

[20-086] Discretionary grounds to refuse to hear a bail application — s 73

The court may refuse to hear a bail application:

  • on the basis that it is frivolous or vexatious (s 73(1)(a)), or

  • where satisfied it is without substance or otherwise has no reasonable prospect of success: s 73(1)(b).

However, these discretionary grounds do not apply to a release or variation application made by an accused person on a first appearance in proceedings for the offence: s 73(3).

[20-088] Procedure for fresh application — s 75

Any bail application heard by the court is to be dealt with as a new hearing. Evidence or information at the new hearing may be given in addition to, or in substitution for, that which was given in relation to an earlier bail decision: s 75.

To top [20-100] Procedures following a grant of bail

[20-102] Procedure if accused granted bail but remains in custody

If an accused person who has been granted bail remains in custody unable to meet a bail condition/s, the court must be notified by the manager of the correctional centre or officer in charge of the police station within 8 days of the person being received into custody: s 42.

On receipt of a notice, the magistrate will inform the registrar of the court of what action, if any, is to be taken. For instance, under s 55, the court has the power to conduct a hearing to vary bail conditions without an application, which may occur on the court’s own motion (or at the request of the accused person or a police officer). This is regarded as a form of variation application.

In any variation application under s 42, the court may only review the existing bail, not the decision whether or not to grant bail: s 55(2). It is a limited review. Accordingly, pursuant to s 55(6), the court may only:

  • affirm the existing bail decision (as to the conditions of bail), or

  • vary the bail decision, but not to revoke or refuse bail.

[20-104] Stay of magistrate’s decision to grant bail for certain serious offences — s 40

Section 40 applies to:

  • offences of murder, or

  • any offence punishable by life imprisonment, or

  • sexual offences involving intercourse, or an attempt, with a person under the age of 16 yrs.

Where a decision is made to grant or dispense with bail to an accused person at their first appearance for a serious offence, that decision will be stayed if:

  • the police officer or legal practitioner appearing on behalf of the Crown immediately informs the court that a detention application is to be made to the Supreme Court, and

  • the applicant provides a copy of the written approval of an authorised officer or the Director of Public Prosecutions to make a detention application in the Supreme Court: s 40(1).

The stay has effect until the first occurring of any of the following:

(a) 

The Supreme Court affirms or varies the decision, or substitutes another decision for the bail decision, or refuses to hear the detention application.

(b) 

The Crown files with the Supreme Court or the Local Court a notice that the Crown does not intend to proceed with the detention application.

(c) 

4 pm on the day that is 3 business days after the day on which the decision was made.

While a stay operates, the accused person is not entitled to be at liberty and remains in custody.

[20-106] Bail acknowledgments

The new Act introduces the concept of a bail acknowledgment in place of a bail undertaking.

Upon a grant of bail being made, the person is to be given a bail acknowledgment, which he or she is required to sign and a copy of which is to be given to the court before being entitled to release: ss 14, 33.

The bail acknowledgment is defined in s 33(2) as a written notice that contains requirements for the person to:

  • appear before the court at a specified day, time and place, and

  • notify the court of any change in the person’s residential address. This is a new requirement that exists independently of any residence condition.

Note:

A person who fails to reside at the address on the bail acknowledgment may be in breach of a bail acknowledgment, rather than failing to comply with a bail condition: Enforcement of bail requirements at [20-120].

[20-108] Requirement to appear — s 13

A person granted bail, or for whom bail is dispensed with, is required to appear before a court and surrender to the custody of the court, when required to do so. In effect, a person who appears before a court following a bail decision (to grant bail or dispense with bail) is in the custody of the court until the court makes further orders in the proceedings: s 13(1).

The time the person is required to appear is when the matter is called at the court premises: s 13(3). Therefore, it is important to ensure prior to making any orders in a person’s absence that the case is called at the courthouse.

A court may excuse a failure to appear: s 13(4). A practical example is upon receipt of a phone or written message and/or a medical certificate, that is accepted by the court for non-attendance.

To top [20-120] Enforcement of bail requirements

[20-122] Failure to comply with bail conditions or bail acknowledgments — ss 77, 78

A police officer has a discretion under s 77 regarding what action may be taken where that police officer believes, on reasonable grounds, that the person has, or is about to, fail to comply with a bail condition or acknowledgment.

A police officer may take no action, warn the person, or take other action. If the police officer decides to arrest the person, or apply for a warrant for that person’s arrest, the person is then placed before the court. In those circumstances there has been no decision by a bail authority to refuse bail. It is for the prosecution to advise the court whether a detention application or a variation application is sought.

Persons arrested by police for failing to comply with bail conditions of the District or Supreme Courts regularly appear at Local/Children’s Courts including courts in remote locations. The nearest District or Supreme Court may often be hundreds of kilometres away. In s 78(6), relevant bail authority is defined to include the Local Court, which has jurisdiction to determine bail under s 78 for persons on bail to appear before the District and Supreme Courts when the person had failed, or was about to fail, to comply with a bail acknowledgment or bail conditions; see also s 69(3).

A failure to comply with a bail condition or bail acknowledgment is not an offence. It is a procedural mechanism for bail to be redetermined, if there has been a failure to comply with bail.

[20-124] Procedure for determination under s 78

1. 

Has the person failed or is the person about to fail to comply with a bail condition or acknowledgment?

In most circumstances a failure to comply will be admitted, for example, failing to report to a police station. However, in circumstances where a failure to comply is not admitted, a short hearing may be required to determine this issue:

  • the court must be satisfied on the balance of probabilities: s 32

  • the party asserting a failure to comply has the onus of proof

  • the rules of evidence do not apply: s 31

  • the court may take into account “any evidence or information that the bail authority considers credible or trustworthy in the circumstance”: s 31.

    Note:

    Prior to making any further orders under s 78 the court must be satisfied that a person has failed or was about to fail to comply with a bail undertaking or bail acknowledgment.

    A practical example of a person about to fail to comply is where a person has a conduct requirement not to leave NSW. Police do not have to wait until the person has actually crossed the border. A person who has purchased a plane ticket to Melbourne and boards a fight to Melbourne with luggage would satisfy this requirement.

2. 

If satisfied a person has failed to comply with a bail undertaking, a court has the following options regarding what orders to make under s 78(1) or (2):

  • release the person on the original bail

  • vary the bail

  • revoke or refuse bail.

Note:

A court may only revoke or refuse bail if satisfied a bail acknowledgment or condition has not been complied with and having considered all the alternatives the decision to refuse bail is justified: s 78(2).

The unacceptable risk test still applies to proceedings under Pt 8: s 78(3).

[20-126] Failing to appear — s 79

Failing to appear in accordance with a bail acknowledgment is a criminal offence. The penalty is either the maximum penalty for the substantive offence or 3 years imprisonment or a maximum $3,300 fine, whichever is the lesser.

A statutory defence of “a reasonable excuse” applies. The onus is on the person to prove reasonable excuse: s 79(2).

Note:

s 80 deals with proceedings for the offence of failure to appear and s 94 contains facilitation of proof provisions for failing to appear proceedings.

To top [20-140] Variation of bail

[20-142] Bail variation on the court’s own motion on first appearance — s 53

On a first appearance by an accused person, a court may, of its own motion, grant bail or vary a previous bail (but not so as to refuse bail).

This power may only be exercised to benefit the accused person: s 53(2).

[20-144] Interested persons who may make a variation application — s 51

A variation application may be made by:

  • an accused person to whom bail has been granted

  • the prosecutor in proceedings for the offence

  • the complainant, where the offence is a domestic violence offence

  • the person for whose protection an order would be made, where the grant of bail relates to AVO proceedings

  • the Attorney General.

Note:

where a bail condition imposed by a higher court is the subject of a direction that it not be varied, the consent of both the accused person and the prosecutor for the condition is required before any variation by the Local or Children’s Courts: s 57.

[20-146] Notice requirements for variation applications

No specific time frame is provided; however, reasonable notice of the application is required: s 51(6), (7).

Clause 20 Bail Regulation 2014 provides:

20

Making of variation application

(1)

An interested person (within the meaning of section of 51 of the Act) is to make a variation application in writing and in the approved form.

(2)

An accused person may make a variation application orally if the person is before the court.

(3)

A court or authorised justice may make a decision on a variation application even if the application does not comply with subclause (1).

(4)

An interested person may, in one variation application, make a variation application in respect of more than one offence committed or alleged to have been committed by the same person.

(5)

If an accused person who makes a variation application is in custody at a correctional centre, the general manager of the correctional centre must forward the variation application, without undue delay, to the registrar of the court to which the application is made.”

Note:

In determining a variation application, a court must not revoke bail unless this is requested by the prosecutor: s 51(8), (9).

To top [20-160] Bail guarantors

[20-162] Variation applications affecting bail guarantors

The Bail Act itself does not require that a bail guarantor provide their consent to a variation of bail conditions. Section 36(3) provides that if a court varies a bail condition for entry into a bail security agreement, it must ensure that a person who has entered into an agreement is given a written notice setting out the terms of the condition as varied.

While there is no legislative requirement, it is recommended for procedural fairness that the views of a bail guarantor be considered in any variation application.

[20-164] Application by bail guarantor to be discharged from liability — s 83

Section 83(1) allows a bail guarantor to apply to a court to be discharged from liability under a bail security agreement at any time. An application may be made to “the court of appearance” (defined in s 83(6) as the court before which the person is required to appear) or the court that granted bail: s 83(2).

A bail guarantor cannot be discharged unless the accused person is before the court: s 83(4).

Section 83(3) provides for the issue of a summons or warrant to bring the accused before the court for this purpose. The court must discharge the bail guarantor “unless satisfied that it would be unjust to do so”: s 83(4). Once a bail guarantor is discharged the security requirement of the bail acknowledgment is no longer intact. Pursuant to s 83(5), a court may:

  • vary the bail conditions, and

  • have the person taken into custody until those new conditions are met.

Note:

Upon the discharge of the bail guarantor, a court has the discretion to either remove a security requirement and/or replace it with another bail condition or to impose the same or a varied security requirement. The accused remains in custody until the new bail conditions are met.

To top [20-180] Bail on appeal

Section 62 empowers the court to hear bail applications when an offender has been convicted or sentenced. The section provides:

62

Power to hear bail application if sentence or conviction appealed

A court may hear a bail application for an offence if:

(a) 

the court has convicted a person of the offence, and

(b) 

proceedings on an appeal against sentence or conviction are pending in another court, and

(c) 

the person has not yet made his or her first appearance before the court in the appeal proceedings.”

Under s 12, a fresh bail decision is to be made:

“(1) 

Bail ceases to have effect if:

(b) 

substantive proceedings for the offence conclude and, at the conclusion of the proceedings, no further substantive proceedings for the offence are pending before a court.

(2) 

Bail is not revived if, after the conclusion of substantive proceedings for an offence, further substantive proceedings for the offence are commenced. However, a new bail decision for the offence can be made under this Act.”

However, an appeal against conviction or sentence is within the meaning of substantive proceedings: see s 5(3). As the explanatory note to s 12(2) further states:

Note.

Proceedings for an offence generally conclude if a person is convicted of and sentenced for the offence. If an appeal against the conviction or sentence is lodged after that conclusion, bail is not revived, but a new bail decision can be made.”

See also at [20-028] as to the additional power of the court to hear a bail application on appeal where the defendant is not present: s 64.

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] Transitional provisions

Transitional provisions in Sch 3 Bail Act 2013 provide for the continuation of the following actions taken under the repealed Bail Act 1978 as if they were taken under the Bail Act 2013:

  • a grant of bail

  • a bail undertaking and any obligations under it

  • a bail agreement and any thing an accused person is required to do or refrain from doing under it

  • a security agreement.

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