Criminal Law - Bail - The importance of a well prepared bail application

As defined in Section 4 ‘bail’ means authorisations to be at liberty under this Act, instead of in custody.

Section 6 provides that the accused person may be granted bail for the period between the time of charging and the first court appearance or in connection with proceedings for the offence, or the period between committal for trial or for sentence and the person’s subsequent appearance at the District or Supreme Court.

Also for periods of adjournment, a period of stay of execution of a conviction or sentence, the period between the lodging of an appeal and its determination and as otherwise provided for the by the Act or Regulations.

Given that the Act provides for authorisation to be at liberty, the question obviously arises as to what types of matters could put an accused’s liberty at risk and what forms of review, if any are possible, if bail is refused.

Section 8 generally provides that an accused person is entitled to bail for all minor matters, including offences under the Summary Offences Act and for all offences punishable summarily. There are exceptions to this such has previous failures to comply with the Bail Act and when the accused is ‘in the opinion’ of the person making the bail determination, unable to understand the requirements of bail because he or she is ‘incapacitated by alcohol, drug, or physical injury or is in need of protection.

Section 8A generally prescribes the offences for which bail would ordinarily not be granted. These offences included crimes which would carry a lengthy gaol sentence if conviction, such as serious drug offences, serious firearms offences, serious repeat property offences, serious civil disorder and riot offences, offences committed on lifetime parole, and then the last category when bail is to be granted in exceptional circumstances only which include murder and repeated personal violence offences.

Normally, when a person is arrested and charged the Police will make the bail determination. The Act provides for either a Sergeant of Police, or an officer who is in charge of the Station at the time the bail determination, has the authority to make a determination on whether to release a person without bail, or with bail with or without conditions.

In those cases where the Police have decided that bail should not be granted, the accused then shall be brought before a court for bail application as soon as possible. For persons arrested outside Court hours, this means time spent in Police custody.

The Court then can effectively hear an application for bail and should the Court decide to either refuse bail, or to grant condition bail in circumstances that the accused person cannot met those conditions, there is limited grounds for a review of that decision.

An amendment to Section 22A of the Bail in late 2007 has serious implications for those persons refused bail by the Courts. Section 22A provides that a court is to refuse to entertain an application for bail if an application has already been made by the Court. There are some limited exceptions, such as in the cases where the initial application was made by an person not legally represented and that same person now has legal representation or in the instances where there are new facts for the Court to consider or where there are circumstances which have arisen since the initial application that would justify the Court hearing a fresh application.

A Court may also refuse to hear an application for bail if it is satisfied it is frivolous or vexations.

For the purposes of this section, a bail application heard by an authorised justice is not to be regarded as application for bail to a Court.

Subsection (3) also provides for the Supreme Court discretion not to entertain an application for bail if the application comprises a bail condition review which could have been dealt with under Section 48A.

Subsection (4) does not affect the power of the Court to review a decision in relation to bail under Division 2 of Part 6 or the right of the person to request such a review.

Part 6 deals with the rights of review of bail decisions generally, and include:

• Section 43A Power of senior police officers to review bail in certain circumstances;
• Section 44 deals with the power of authorised justices, magistrates and certain courts to review bail determinations, which includes authorisation for authorised justice to review a decision of another authorised justice, for a magistrate to review a decision of an authorised justice or magistrate, District court may review a decision of the District Court, and similarly provisions for the Land and Environment Court and the Industrial Relations Commission in their respective jurisdictions, and bail decisions of the Supreme Court by any of the aforementioned courts if satisfied that there are special facts or circumstances to justify the review.
• Sect 48A allows for a review in those circumstances where bail was granted subject to conditions, which the accused cannot meet.

Differences: Previously, the stated aim of Section 22A prior to the recent amendment was to prevent repeated applications to the Supreme Court for bail for those person in custody awaiting trial. The current amendment now applies to Local Courts and apparently to previous the ‘problem of unnecessary and repeated applications by well funded litigants.’

The importance of the legislative change is for those persons facing the prospect of being detained for an indefinite period for any of the serious allegations referred to above, is to ensure that they consider carefully the preparation and presentation of their application for bail as it may well be their last for quite some time.