Effective Bail Applications
Under the Bail Act 2013 (NSW)
Awais Ahmad and Dr Anton Hughes
Paper presented at Maurice Byers Chambers
26 June 2014
Table of Contents
PART I - Conceptual rationale for the overhaul ....................................................... 2 1. Review of existing bail law .................................................................................... 2 2. Asserted deviation from the original purpose of the Act ........................................... 3 3. Presumptions......................................................................................................... 4 4. Applying enforcement conduct directions ................................................................ 5 5. Approach to special needs and vulnerabilities......................................................... 6 6. Refusing to hear applications ................................................................................. 7 7. Trends in remand .................................................................................................. 8 8. Consequences of remand ...................................................................................... 9 9. Restrictive conditions ........................................................................................... 10 10. Highlights of changes ........................................................................................ 11 PART II – Terminology, structure and jurisdictional issues ...................................... 12 11. Structure ........................................................................................................... 12 12. Terminology ..................................................................................................... 12 13. Jurisdictional issues and limits on powers ............................................................ 14 14. Grounds for further release and detention applications: s 74 ............................... 16 PART IV – A Guide to Bail Decisions ................................................................... 18 15. Unacceptable Risk ............................................................................................. 18 An Overview of Part 3 of 2013 Act .......................................................................................18 Unacceptable risk of what? ...................................................................................................19 Determining unacceptable risk – a balancing exercise ............................................................21 The Victorian approach ........................................................................................................23 Predictive exercise — identifying past conduct with precision....................................................25 Does the court have regard to the presumption of innocence? .................................................27 Onus and standard of proof .................................................................................................29 16. Mitigating Unacceptable Risk ............................................................................. 30 An Overview .......................................................................................................................30 Condition types ....................................................................................................................32 Bail Checklist ..................................................................................................... 35 PART I - Conceptual rationale for the overhaul
1.
Review of existing bail law
1.1
On 8 June 2011 the Attorney General directed the NSW Law Reform Commission (the
Commission) to commence a review of bail law. The Commission was to be guided by
the following terms of reference:
(a)
whether the Bail Act 1978 (the 1978 Act) should incorporate a statement of
objects and what those objects should be;
(b)
whether a list of factors should be included to aid in determining a bail
application;
(c)
whether presumptions should apply and how they should apply;
(d)
the responses to breach of bail including the use of judicial and police
discretion when responding to a breach;
(e)
whether it is desirable to maintain s 22A;
(f)
whether a distinction should be made between juveniles and adults;
(g)
whether special provisions should apply to young offenders and other
vulnerable groups such as people with mental impairments, cognitive
impairments and Aboriginal and Torres Strait Islanders;
(h)
bail schemes in different jurisdictions, especially ones that have a low remand
population; and
(i)
1.2
any other related matter the Commission deemed important.
The review was necessitated by several concerns surrounding bail law. Firstly, that the
1978 Act as increasingly difficult to apply, 1 and secondly the growing remand
1
Judge Graeme Henson, Submission No 2 to NSW Law Reform Commission, Bail, 4th July 2011, 1.
Page 2
population (between 2000 and 2010 there was a 69% increase of people in custody
awaiting trial).2
1.3
The Government adopted many, but not all, of the recommendations contained in the NSW
Law Reform Commission Report (NSWLRC Report). In the second reading speech
introducing the Bail Bill 2013, the Attorney General said (Hansard, Legislative Assembly,
1 May 2013):
“The Government agreed to adopt a large number of the recommendations made by the review.
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.”
2.
Asserted deviation from the original purpose of the Act
2.1
The traditional object when making a bail determination was to secure the appearance
of the accused before the court, protecting the community having regard to the interests
of the accused.3
2.2
When the Act was introduced in 1978, Attorney General Frank Walker stated that a
community must be protected against dangerous offenders:
“…one must not lose sight of the circumstances, first that when bail is being considered, one is
confronted with an alleged crime and an unconvicted accused person, and second that the liberty of the
subject is one of the most fundamental and treasured concepts in our society.”4
2.3
It has been said that these circumstances and the primary object of the 1978 Act have
been periodically displaced. The Chief Magistrate of the Local Court indicated that the
curtailment of these objects has been due to political reactions to publicised disquiet
which descends from media campaigning rather than from evidence.5 The original
philosophy of the 1978 Act has been replaced by an attitude that bail is to be used as a
form of pre-emptive punishment.6
NSW Law Reform Commission, Bail- Questions for Discussion (2011) 4.
Judge Graeme Henson, Submission No 2 to NSW Law Reform Commission, Bail, 4th July 2011, 1.
4 Max Taylor, Submission No 3 to NSW Law Reform Commission, Bail, 7th July 2011, 2.
5 Judge Graeme Henson, Submission No 2 to NSW Law Reform Commission, Bail, 4th July 2011, 1.
6 Ibid.
2
3
Page 3
2.4
In an attempt to rectify this, the Bail Act 2013 (NSW) (the 2013 Act) has introduced a
risk management approach which seeks to have regard to the interests of the accused
whilst balancing the need to protect the community and secure the appearance of the
accused in court.
3.
Presumptions
3.1
The previous scheme of presumptions collected offences into categories of
presumptions which resulted in the unique circumstances of each defendant being
ignored.7 The Chief Magistrate of the Local Court claimed that grouping offences into
the categories of presumptions had no connection to considering the “…discrete
circumstances of each accused person and the purpose of determining how to best
ensure his or her future attendance at court.”8
3.2
Legal Aid NSW described the presumptions scheme as negatively inflating “the
significance of the type of offence alleged.”9 The focus is shifted to the seriousness of
the offence and the person’s criminal history rather than on an examination of all
relevant factors. This frequently creates results that are unjust. Although it was said this
scheme does promote consistency and more predictability of outcome, this can not be
prioritised over the importance of individualised justice.10 The blunt approach created
by the presumptions scheme ignores the fact that the circumstances that constitute an
offence can significantly vary in their objective seriousness.11
3.3
Another key problem with the presumptions scheme is that it unjustifiably increases the
likelihood of bail being refused. This, it was said, resulted in the outcome produced by
the 1978 Act being incongruent with its purpose. Defendants are more likely to be
refused bail when a presumption against bail exists or when it can only be granted in
exceptional circumstances.12 A result of this is that an increased number of people are
being detained pending trial, which not only conflicts with the presumption of
innocence but also has financial implications for the community.13 The cost of the
failure to find a better way of dealing with accused people who remain in custody
NSW Law Reform Commission, Bail, Report No 133 (2012) 115.
Judge Graeme Henson, Submission No 2 to NSW Law Reform Commission, Bail, 4th July 2011, 2.
9 NSW Law Reform Commission, Bail, Report No 133 (2012) 115.
10 Ibid 121.
11 Ibid.
12 Ibid 42.
13 Ibid 121.
7
8
Page 4
pending trial is exorbitant.14 The cost of running correctional services for adults is $1
billion a year in NSW and the cost of keeping a juvenile in custody costs $541 per
day.15
3.4
The 2013 Act attempts to defeat these problems by abandoning the current presumption
scheme. The Commission recommended that this scheme be removed and replaced by
a uniform presumption in favour of release. The government responded positively to
this suggestion by developing a new bail model within the 2013 Act. This model
disposes with the presumptions scheme and instead implements a risk management
approach. This shifts the emphasis from the type of offence to the individual risk posed
by the defendant.16 Under this system a person will be denied bail if they are an
unacceptable risk.17
4.
Applying enforcement conduct directions
4.1
The implications of Lawson v Dunlevy [2012] NSWSC 48 resulted in the 1978 Act
having problems in applying enforcement conduct directions.18
4.2
In Lawson v Dunlevy a person was granted bail subject to a condition that he not
consume any alcohol. To enforce this condition, he was required to submit to a breath
test when requested. The validity of this requirement was at issue in the case, and it was
held by Justice Garling that the requirement could not be lawfully imposed under the
Bail Act as it was inconsistent with the purposes for which conditions can be imposed.
4.3
This decision has relevance for many commonly imposed requirements including
curfew and residence requirements, the wearing of an electronic bracelet, any direction
requiring a person to present to a police officer or to respond to a call. This created
difficulties in making enforcement conduct directions which are designed to aid in
detecting breaches and encourage bail compliance.
4.4
To address the problem created by Lawson v Dunlevy the Commission recommended
that the government should consider providing a mechanism for imposing enforcement
conduct directions in the new Act as long as these directions are limited and properly
Max Taylor, Submission No 3 to NSW Law Reform Commission, Bail, 7th July 2011, 4.
Ibid 5.
16 NSW Government Response to the NSW Law Reform Commission Report on Bail, November 2012, 9.
17 Ibid.
18 Lawson v Dunlevy [2012] NSWSC 48.
14
15
Page 5
targeted to risk. Without such a mechanism the police do not have sufficient powers to
monitor and enforce the compliance of conduct directions.
4.5
The government responded by making amendments to the 2013 Act (The Bail
Amendment (Enforcement Conditions) Bill 2012) but also proposed to include a scheme
of enforcement conditions in the 2013 Act.
5.
Approach to special needs and vulnerabilities
5.1
The 1978 Act was seen to be deficient in its approach to special needs and
vulnerabilities, failing to adequately address the needs of certain groups such as young
people, Aboriginal and Torres Strait Islander people and people with mental health
impairments.19
5.2
The Commission attempted to rectify these problems and proposed that consideration
be given to specific groups of people who have special needs and vulnerabilities. An
issue identified in the 1978 Act was the overly restrictive conditions placed on bail and
the fact that they are especially difficult to comply with for young people, people with
mental health impairments and Aboriginal or Torres Strait Islander people.20 The 1978
Act does require the special needs of these groups to be considered by authorities.21
However, the interests of these groups are not dealt with adequately and further
provision regarding the needs of these groups should be made.
5.3
For example, the Commission recommended that in regards to young people the new
Act should provide that authorities must consider the following:
(a)
that the detention of a young person should be used as a last resort and for the
shortest time period appropriate; and
(b)
5.4
that they have an undeveloped capacity for complex decision-making.
In respect to people with mental or cognitive health impairments, the Law Reform
Commission recommended that the new Act should provide that the authority must
consider:
NSW Law Reform Commission, Bail, Report No 133 (2012) 189.
Ibid 99.
21 Bail Act 1978 (NSW) s 32(1)(b)(v).
19
20
Page 6
5.5
(a)
the person’s need to access support or treatment;
(b)
their ability to understand and to comply with conditions; and
(c)
any additional impact of imprisonment on them as a result of their impairment.
In respect to Aboriginal and Torres Strait Islander people, the Law Reform
Commission recommended that the new Act should require the authority to consider
any issue relating to their identity and culture such as connections to family and place.
5.6
The government responded by acknowledging the vulnerability and needs of these
particular groups. It addressed this by requiring these vulnerabilities and needs to be
considered by the bail authority when bail is being determined.
6.
Refusing to hear applications
6.1
An important deficiency under the 1978 Act is s 22A which prevented a person gaining
access to the courts to challenge detention when that person has not been convicted of a
crime.
6.2
To remedy this, the Commission put forward three recommendations:
(a)
that the power to refuse to hear applications be retained but that the restrictions
be less stringent;
(b)
adults should be entitled to a second bail application; and
(c)
that there should be no restrictions on repeat bail applications for young
people.22
6.3
The 2013 Act dictates that a court must refuse to hear an application if one has already
been dealt with unless that person had no legal representation, their circumstances have
changed, or the relevant information was not presented previously.23 This has created a
blanket approach to repeat applications which is claimed to be motivated by the desire
to prevent wasteful applications. However, the Law Reform Commission argues that
22
23
NSW Law Reform Commission, Bail, Report No 133 (2012) 285.
Bail Act 1978 (NSW) s 22A(1A).
Page 7
these cases are not numerous enough to warrant the adoption of such an approach and it
only unfairly denies access to courts.24
6.4
The 2013 Act did not change significantly in response to these recommendations. This
issue of restricting access to courts for a second application was not remedied. The
government did not support the proposals concerning second bail applications as of
right nor that youths be excluded from having repeat bail restrictions. However, the
government did address the youth issue by making provisions in the 2013 Act for
juveniles to apply a second time for bail if the first application was made on the day of
first court appearance. It also accepted the retention of provisions allowing for
subsequent applications where new information or circumstances have arisen.
7.
Trends in remand
7.1
Since the 1990s the number of unsentenced prisoners in NSW has steadily risen.
Research provided for in the NSWLRC Report shows that between 1995 and 2010 the
remand population has increased more rapidly than the sentenced prison population
(with the remand population increasing by approximately 250% and the sentenced
prison population by 20%).25 Overall the statistics affirm not only a steady rise in the
general prison population but an accelerated growth in the prison population
constituted by those on remand.26 In comparison to other jurisdictions the NSW rate of
unsentenced prisoners per 100,000 population has consistently been above the national
average over the period 1998 – 2011.27
7.2
The trends in remand population are also reflected in specific groups of people, such as
women, youth, and indigenous people. The number of young people on remand on an
average day has increased from approximately 225 in 2000 to over 400 in 2010 with
half of the youth in juvenile detention being unsentenced.28 Whilst the number of
indigenous people on remand rose to 72% in less than a 10 year period.29 Although
NSW Law Reform Commission, Bail, Report No 133 (2012) 286.
NSW Law Reform Commission, Bail, Report No 133 (2012) 48; Table 4.1 – 4.3.
26 Ibid.
27 NSW Law Reform Commission, Bail, Report No 133 (2012) 49; Table 4.4.
28 NSW Law Reform Commission, Bail, Report No 133 (2012) 46; 55.
29 Ibid.
24
25
Page 8
crime rates in NSW and across Australia have decreased since 2000 there is no
evidence to suggest remand rates have had an effect in reducing crime.30
8.
Consequences of remand
8.1
Imprisonment is a form of punishment, the consequences of which effect not only the
prisoner but also the wider community. As a result of imprisonment a prisoner may
lose employment and not regain the position upon release. The person is then
vulnerable to various stigmas and re-employment is likely to be compromised. The
elimination of an income can have subsequent effect on the persons overall financial
status, family relations, general wellbeing and mental health. Further there is
longstanding view that imprisonment may increase the likelihood of subsequent
offending, known as the ‘criminogenic effect’.31 While the effects and consequences of
imprisonment will obviously be more potent in a case of lengthy imprisonment the
effect of being in prison can be equally injurious to remandees.
8.2
In addition to the traditional hardships of imprisonment the NSWLRC Report provides
that there are numerous consequences of imprisonment that are particular to remandees,
including:
8.3
(a)
no substantial opportunity to prepare for prison;
(b)
higher rates of assault;
(c)
negative impact on fair trial; and
(d)
high risk of mixing with sentenced prisoners.
The financial cost of keeping a person in prison has been detailed earlier, but the
severity of the statistics should be further detailed by the Corrective Services NSW
advice:
Ibid, 43.
See generally D Brown, “The Limited Benefit of Prison Controlling Crime” (2010) 22(1) Currnent Issues in Criminal
Justice 137, 141; M H Pritikin, “Is Prison Increasing Crime?” (2008) 6 Winsconsin Law Review 1049; T V Kovandzic and L
M Vieraitis, “The Criminogenic Effects of Imprisonment: Evidence from State Panel Data 1974 – 2002” (2007) 6(3)
Criminology and Public Policy 589.
30
31
Page 9
“[…]remand inmates are some of the most resource intensive inmates in the correctional system […]
because despite many being in custody for only a few days, remand inmates require screening,
intense monitoring, escorts and security around family and legal visits.”32
9.
Restrictive conditions
9.1
A shortcoming in the 1978 Act was that restrictive conditions were often imposed for
minor offences.
9.2
Regardless of the s 37(2) requirement that conditions on bail not be more onerous that
appear to be required, excessively arduous conditions reporting requirements had been
increasingly sought.33 These requirements go beyond what is necessary to secure the
accused’s appearance at court and conflict with the original object of the Act. The
Chief Magistrate of the Local Court proposed a measure to attend to this issue; the
introduction of a provision that places the onus on the party wishing to impose the
condition.34 That party must satisfy the court that the proposed condition is reasonably
necessary.
9.3
Due to the unnecessarily restrictive nature of conditions imposed for minor offences,
the accused often ends up in custody for offences that do not have a penalty of
imprisonment. For this to occur is not only inappropriate, but is also unjust.35
9.4
Restrictive bail conditions can be extremely difficult to comply with, especially for
youths, homeless people, people with mental or cognitive health impairments, or even
people who are just poorly organised.36 Many instances of people failing to appear are
inadvertent rather than intended. This, coupled with the difficulty of complying with
restrictive conditions, has resulted in inflating people’s risk of being refused bail for a
minor or fine-only offence.37
9.5
To rectify this problem, the Law Reform Commission suggested that bail conditions
should only be imposed in situations where they are absolutely necessary to avoid
detention. The government responded to this recommendation by retaining the ability
to place conditions on bail for fine-only offences, but by implementing restrictions in
Corrective Services NSW, Submission BA29, 2.
Judge Graeme Henson, Submission No 2 to NSW Law Reform Commission, Bail, 4th July 2011, 2.
34 Ibid.
35 NSW Law Reform Commission, Bail, Report No 133 (2012) 97-8.
36 Ibid 99.
37 Ibid.
32
33
Page 10
the 2013 Act to ensure that those conditions are only targeted at risk.38 To ensure this,
the unacceptable risk test is to be utilised.
10.
Highlights of changes
Old ActSection
Topic
Comment
New ActSection
Topic
8
Entitlement to
release on bail for
minor offences
Modified
slightly
21
Entitlement to release for fine
only offences, and for offences
under the Summary Offences Act.
Right to place bail conditions on
accused for fine only offence or
offence under the Summary
Offences Act but restrictions
included to ensure conditions only
targeted at risk.
Scheme of
presumptions
Deleted
-
Exceptional
circumstances for
Murder and
Repeat Offenders
Appeals to the
Court of Criminal
Appealexceptional
circumstances test
Special needs and
vulnerabilities
Deleted
Scheme of presumptions
dispensed with and replaced by a
risk management approach.
Risk based approach.
Unchanged
22
In relation to appeals from the
Court of Criminal Appeal, the
exceptional circumstances test for
bail was retained.
Modified
slightly
17(3)(j)
Modified
slightly
23-30
Bail authority is required to
consider vulnerabilities or special
needs of the accused during the
determination of bail. Youth,
mental health or cognitive
impairment, or Aboriginal or
Torres Strait Islander status are
some vulnerabilities that are
specifically dealt with.
Contains a provision that prevents
conditions from being more
arduous than required to deal with
the level of risk. If the risks posed
by the accused can be mitigated
by bail conditions, then those
conditions should be applied and
the person released on bail. Must
8-9
9C and 9D
30AA
32
36
38
Bail conditions
Bail Act 1978 (NSW) s 24.
Page 11
-
22A
Implications of
Lawson v
Dunlevyprevented use of
bail conditions
utilised for
compliance
monitoring
(enforcement
conduct
directions)
Refusing to hear
applications
New
30
Modified
slightly
74(3)(d)
be reasonable and
proportionate to the risk
identified.
S 30 was inserted to allow bail
conditions to incorporate
enforcement conditions so long as
they are used for monitoring or
enforcing compliance.
The recommendation that
juveniles be not included in this
provision and adults be allowed a
second application was rejected.
However, a provision was inserted
to allow juveniles to apply a
second time if the first bail
application was made on the day
of the first court appearance.
PART II – Terminology, structure and jurisdictional issues
11.
Structure
11.1
Part 3 – Making and variation of Bail decisions and Part 4 – Procedures after decision
is made or varied.
11.2
Part 2 – General Provisions, Parts 5 – Powers to make and vary bail decisions, Part 6 –
Powers to hear bail applications, Part 8 – Enforcement of bail requirements set out the
jurisdictional limits on a “bail authority” as well as the scope of their powers once that
jurisdiction is invoked.
11.3
Part 9 – General provisions about security arrangements and Part 10 – Miscellaneous.
12.
Terminology
12.1
The 2013 Act provides for the following types of Bail decisions (see s 8):
Page 12
(a)
A decision to release the person without bail for the offence;
(b)
A decision to dispense with bail for the offence;
(c)
A decision to grant bail for the offence (with or without bail conditions); or
(d)
A decision to refuse bail for the offence.
12.2
A release decision can only be made by a Police Officer (s 9).
12.3
A dispense decision can only be made by a Court or Authorised Justice (s 10).
12.4
A grant or refusal decision can be made by a Bail Authority.
12.5
Section 43 limits powers of the Police Officers to release without bail, or otherwise
grant or refuse bail, capable of review by a more senior officer s 47.
12.6
A court or authorised justice can only make a bail decision after hearing a bail
application (s 48).
12.7
Generally, a court has only power to hear a bail application if (see Part 6):
(a)
Proceedings for the offence are pending in the Court;
(b)
Proceedings on an appeal against a conviction or sentence of the court are
pending in another court and the accused person has not made a first
appearance before the other court; or
(c)
12.8
The bail decision to be varied was made by the Court.
Sections 49 and 51 of the 2013 Act implement the Law Reform Commission’s
recommendation by providing for three types of bail applications that can be heard by
the Court or authorised justice:
(a)
A release application (made by the accused person to grant or dispense with
Bail)(made orally or in writing in approved form s 16 of the regulations); or
Page 13
(b)
A detention application (made by the prosecutor to refuse or revoke bail) – a
prosecutor can oppose a release application without making a detention
application; or
(c)
A variation application (made by the accused, a prosecutor, a complainant in
a domestic violence offence and the Attorney General.
12.9
‘Bail Authority’ is a police officer, an authorised justice or a court (which includes
CCA, Supreme Court, LEC or District Court or other body exercising criminal
jurisdiction.
12.10
Authorised justice is a registrar of the Local Court or Children’s Court or someone
declared by the Minister or by the regulations.
12.11
There will no longer be a concept of review of bail decision under the 2013 Act. The
practice remains the same however, since s66 of the Act confers of jurisdiction on the
Supreme Court to hear a release, detention and variation applications where bail
decisions have been refused by a lower court (see below).
13.
Jurisdictional issues and limits on powers
13.1
Section 61 of the 2013 Act makes clear that each jurisdiction has power to hear a bail
application for an offence if proceedings for the offence are pending before that
jurisdiction.
13.2
Section 62 of the 2013 Act provides each jurisdiction with power to hear a bail
application in relation to an appeal against conviction or sentence imposed in that
jurisdiction, up until when the appellant first appears in the appellate court.
13.3
Section 63 of the 2013 Act makes clear that each jurisdiction has power to hear a
variation application in relation to a bail decision of that jurisdiction.
13.4
Part 6, Div 3 of the 2013 Act contains the relevant provisions and refers to the type of
application that can be made in each court following a decision in another jurisdiction.
Page 14
13.5
Section 66 refers specifically to the Supreme Court:
66 Powers specific to Supreme Court
(1) The Supreme Court may hear a release application for an offence if bail for the offence has been
refused by another court, an authorised justice or a police officer.
(2) The Supreme Court may hear a detention application or variation application for an offence if a bail
decision has been made by the District Court, the Local Court, an authorised justice or a police officer.
13.6
Section 67 relates to the Court of Criminal Appeal:
67 Powers specific to Court of Criminal Appeal
(1) The Court of Criminal Appeal may hear a bail application for an offence if:
(a) the Court has ordered a new trial and the new trial has not commenced, or
(b) the Court has made an order under section 8A (1) of the Criminal Appeal Act 1912 and the
person is before the Court, or
(c) the Court has directed a stay of execution of a conviction and the stay is in force, or
(d) an appeal from the Court is pending in the High Court, or
(e) a bail decision has been made by the Land and Environment Court, the Industrial Court or the
Supreme Court.
(2) Despite subsection (1) (e), a Judge of the Court of Criminal Appeal sitting alone cannot hear a bail
application if a bail decision has been made by the Supreme Court (however constituted) unless the rules
made under the Supreme Court Act 1970 permit the Judge to do so
13.7
Section 69 provides for limited powers for other courts to make a bail decision, when a
decision has already been made by the Supreme Court or the Court of Criminal Appeal.
Section 69 provides:
69 Limited powers when decision made by Supreme Court or Court of Criminal Appeal
(1) The Local Court, the District Court, the Land and Environment Court or the Industrial Court (a
relevant court) may hear a bail application for an offence when a bail decision has been made by the
Supreme Court (however constituted) or the Court of Criminal Appeal only if:
(a) proceedings for the offence are pending in the relevant court, and
(b) the person appears before the relevant court in those proceedings, and
(c) the relevant court is satisfied that special facts or special circumstances justify the hearing of the bail
application.
Page 15
(2) This section has effect subject to any exceptions or other limitations prescribed by the regulations.
(3) This section does not prevent a court from hearing a detention application under Part 8.
Note. Part 8 permits bail to be revoked because of a failure or threatened failure to comply with a bail
acknowledgment or bail conditions.
13.8
The Local Court may not vary a bail condition imposed by a higher court that the
higher court has directed is not to be varied by the Local Court (unless agreed to by the
accused and the prosecutor) (s 57).
13.9
Authorised Justices have specific powers to vary bail conditions within the meaning of
s 52.
14.
Grounds for further release and detention applications: s 74
14.1
Section 72 says that a court must hear a release application or variation application by
an accused on their first appearance in substantive proceedings, and is not to decline to
hear the application because notice has not been given to the prosecutor. However,
there is a power to adjourn the application, but only where it is “necessary in the
interests of justice”.
14.2
Sections 73 and 74 replace the current section 22A. Section 73 gives the court the
discretion to refuse to hear applications which are frivolous or vexatious (this was
previously found in s22A(2)). A new ground has also been introduced for refusing to
hear an application where it is hopeless.
14.3
Section 74 is the new version of the current section 22A(1) and (1A). Grounds for
making a new bail application in s 74(3)(a), (b) and (c) are identical to ss 22A(1A),
being as follows:
(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.
Page 16
14.4
It is arguable, that the 2013 Act, is of itself a new circumstance and information
capable of allowing for repeat applications.
14.5
There is also a new paragraph 74(3)(d):
(d) the person is a child and the previous application was made on a first appearance for the offence.
14.6
Another new development is a similar limitation on detention applications by
prosecutors in section 74(2) and (4), which are identical to (b) and (c) above.
14.7
In R v Fesus [2014] NSWSC 770, Adams J noted:
[6] This is an application that comes to be made under the amendments recently coming into effect in
relation to bail. As mentioned above, bail has previously been refused under different requirements. This
test was changed in a very significant way by the new Act, Bail Act 2013 (NSW), and applications which
were or would have been refused under the old regime might now have a different outcome as, indeed,
was the case here.
[11] Where there an application for bail has previously been decided, such as here, the new Act permits a
further application to be made in certain circumstances, specified in s 74. If one or more of those
circumstances are present, the application may be made and is to be decided by applying the provisions
of the new Act. In substance, the present application may be considered if "information relevant to the
grant of bail is to be presented ... [which] was not presented to the Court in the previous application ..."
[12] The threshold is a low one: relevance of the new information is sufficient; it does not have to be
convincing; it does not have to be decisive; it does not have to weigh with any particular level of
significance in the consideration of whether bail should be refused or not. Of course, it must be capable
of influencing the decision, else it would not be relevant. This is not surprising. It is obvious that the
Parliament considers that the present test imposed by the Act for the consideration of all new bail
applications is appropriate and (if s 74 is satisfied) to the present application. It is true that the test is
different - although the relevant factors remain unchanged -- but there is no reason, when the question of
bail remains ongoing, arbitrarily to exclude from current applications, by virtue of some accidental
chronology, the application of the present test.
14.8
Compare above with the following comments made by Attorney General Brad
Hazard’s media release 24 June 2014:
The DPP has instructed his lawyers that the implementation of the new Bail Act does not in itself
constitute a change in circumstances that would give rise to fresh applications and therefore any
applications made on this basis should be opposed.
“If there is a need to make changes to bail then the Government will do so,” Mr Hazzard said.
Page 17
PART IV – A Guide to Bail Decisions
15.
Unacceptable Risk
An Overview of Part 3 of 2013 Act
15.1
The 2013 Act sets out a new procedure for the making of bail determinations. As noted
above it is a substantial change from the procedure under the 1978 Act. As such, the
draftsman has set out a decision making flowchart in s 16 of the 2013 Act. A simplified
version of that flowchart is set out below:
Yes
Is there unacceptable risk?
Can conditions sufficiently
mitigate the risk?
No
Refuse bail
15.2
No
Unconditional release
Yes
Conditional release
If the assessment is that the person does not present unacceptable risk then the person
will be released unconditionally. If the bail authority is satisfied that the accused person
does present unacceptable risk it will then that have to assess whether that risk can be
sufficiently mitigated by the imposition of bail conditions. If so then the person will be
released on conditional bail. There are certain restrictions on the types of conditions
that may be imposed – for example; they are not be more onerous than necessary to
mitigate the unacceptable risk in relation to which the conditions is imposed.
15.3
If the risk cannot be mitigated by the imposition of bail conditions then the person will
be refused bail.
Page 18
15.4
The requirements of this new approach are still sinking in. Contrast the approach
outlined above with published decision of R v Fesus [2014] NSWSC 770 per Justice
Adams:
[16] Viewing the information tendered on the application as a whole, I think that, on the balance of
probabilities, the applicant does not present an unacceptable risk of failing to appear at any proceedings
for the offence, committing a serious offence, endangering the safety of victims, individuals or the
community, or interfering with witnesses or evidence.
[17] Accordingly, I propose to grant conditional bail. (emphasis added)
Unacceptable risk of what?
15.5
The first decision which must be made on a bail application, is whether there are “any
unacceptable risks”.39 What amounts to an “unacceptable risk” is defined in section
17(2), which states that an unacceptable risk is an unacceptable risk that an accused
person, if released from custody, will:
15.6
(a)
fail to appear at any proceedings for the offence, or
(b)
commit a serious offence, or
(c)
endanger the safety of victims, individuals or the community, or
(d)
interfere with witnesses or evidence.
As a practical matter, it may be expected that shortcuts will be made by prosecutors,
who will simply assert that the applicant represents an “unacceptable risk”, without
necessarily identifying a particular risk in 17(2) is, or, more importantly, what it is
which makes that risk unacceptable.
15.7
That requirement should not be concede lightly. As with relevance under the Evidence
Act, the specification of the nature of the unacceptable risk alleged has flow-on
consequences in relation to conditions. It is essential that the prosecution, who bear the
onus of proof, articulate their argument with sufficient specificity.
39
Section 17(1).
Page 19
15.8
The importance of articulation is underscored by the fact that the only matters that the
decision maker is to take into account when deciding whether there is an unacceptable
risk, are set out in s 17(3):
(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 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
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, and
(l)
the need for the accused person to be free for any other lawful reason.
Page 20
15.9
This subsection is familiar territory for those who regularly make bail applications. As
such, there is likely to be a strong temptation to simply point out these factors where
they exist. But there is an extra step which has to be made, which is to link the
existence of those factors to a particular type of risk in s 17(2).
15.10
In the Victorian case of Haidy [2004] VS 247 at [18], Redlich J noted, in respect of
similar provisions,
“To assess whether the risk is unacceptable the court is required to have regard to the matters set out in
s.4(3) of the Act and all other relevant matters. Some of those matters may not bear upon the degree of
risk. The degree of likelihood of the occurrence of the event may be only one factor which bears upon
whether the risk is unacceptable. Thus the time which will elapse before the offender’s trial has been
held to be a factor which may bear upon whether the risk is unacceptable. Mokbel v DPP (No. 2) [2002]
VSC 312; Mokbel v DPP (No. 3) [2002] VSC 391.”
15.11
For example, does a pattern of non-compliance with reporting conditions indicate a risk
of failure to appear? Is it relevant to the likelihood of offending? It is only where the
alleged risk is identified that a court can properly determine whether that risk is
unacceptable.
15.12
Subsection 17(4) should also be mentioned here, as it provides a non-exhaustive list as
to what is a “serious offence”. The relevant factors are:
(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.
Determining unacceptable risk – a balancing exercise
15.13
This paper argues that the judicially accepted approach to identifying “unacceptable
risk”, as well as the criteria s 17(3), requires the court to engage in a balancing of those
criteria before it concludes that an acceptable risk exists in respect of one of the matters
in s 17(2). It is further contended that the Court must make that finding on logical and
Page 21
probative material, not conjecture and impressionistic appraisal of the accused’s prior
conduct (or other generalised assumptions of human behaviour).
15.14
The term “unacceptable risk” is defined or explained only in terms of s 17 (see
definition s 4(1)). The words should be given their ordinary meaning, viewed in their
statutory context.
15.15
The term “unacceptable risk” has been considered in different contexts, including child
access and custody (M v M [1988] HCA 68; 166 CLR 69) and serious sex offender
legislation (Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575). It is used, as
well, in the Bail Act 1980 (Qld) and the Bail Act 1977 (Vic) (to which further reference will
be made).
15.16
In Fardon v Attorney-General (Qld), Gleeson CJ said at 593 [22]:
“It was argued that the test, posed by s 13(2), of an unacceptable risk that the prisoner will commit a
serious sexual offence is devoid of practical content. On the contrary, the standard of “unacceptable risk
was referred to by this Court in M v M [(1988) 166 CLR 69 at 78] in the context of the magnitude of a
risk that will justify a court in denying a parent access to a child. The Court warned against striving for a
greater degree of definition than the subject is capable of yielding. The phrase is used in the Bail Act
1980 (Q), which provides that courts may deny bail where there is an unacceptable risk that an offender
will fail to appear (s 16). It is not devoid of content, and its use does not warrant a conclusion that the
decision-making process is a meaningless charade
15.17
Gummow J, at 606 [60], referred to M v M at 78, where Mason CJ, Brennan, Dawson,
Toohey and Gaudron JJ said (footnotes excluded):
“Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a
parent access to a child have resulted in a variety of formulations. The degree of risk has been described
as a 'risk of serious harm', 'an element of risk' or 'an appreciable risk', 'a real possibility', a 'real risk', and
an 'unacceptable risk'. This imposing array indicates that the courts are striving for a greater degree of
definition than the subject is capable of yielding.”
15.18
Callinan and Heydon JJ, at 657 [225], observed that “the process of reaching a predictive
conclusion about risk is not a novel one”, referring to the passage from M v M cited in the
preceding paragraph.
15.19
The term “unacceptable risk” is also used in s 5B Crimes (High Risk Offenders) Act
2006,40 and similar legislation in other jurisdictions in Australia (as considered in Fardon v
Section 5B(2) defines a high risk sex offender as a person who is “a sex offender and the Supreme Court is satisfied
to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or
she is not kept under supervision”.
40
Page 22
Attorney-General (Qld)). Although the context is different (as is the standard of proof),
what has been said may assist in consideration of the meaning of the term in the bail
context.
15.20
In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149
Steytler P and Buss JA said at 159 [27]:
“The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard,
amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious
consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the
serious consequences for the offender, on the other, if an order is made (either detention, without having
committed an unpunished offence, or being required to undergo what might be an onerous supervision
order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to
basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to
the nature and degree of the risk, so that it can be adapted to the particular case [...].”
The Victorian approach
15.21
Section 4(2)(d) of the Bail Act 1977 (Vic) is as follows:
if the court is satisfied—
(i) that there is an unacceptable risk that the accused if released on bail would—
fail to surrender himself into custody in
answer to his bail;
commit an offence whilst on bail;
endanger the safety or welfare of members of the public; or interfere with witnesses or otherwise
obstruct the course of justice whether in relation to himself or any other person;
15.22
Whilst the wording of s4(2)(d) is different, it is clear that the section is directed to
similar considerations to the NSW Act.
15.23
In the case of Haidy [2004] VSC 247, Redlich J of the Victorian Supreme Court
considered the test under s 4(2)(d) Bail Act 1997 (Vic) which required that the court to
refuse bail if it was satisfied that there was an unacceptable risk that the accused would,
if released on bail, commit an offence. His Honour set out the following principles:
[14] Bail when granted is not risk free. Williamson v DPP (O’ld).41
41
[1999] QCA 356.
Page 23
[15] As the offender’s liberty is at stake, a tenuous suspicion or fear of the worst possibility if the
offender is released will not be sufficient. Dunstan v DPP;42 Williamson v DPP (Q’ld).43
[16] It is not necessary that the prosecution establish that the occurrence of the event constituting the risk
is more probable than not. There are recognised conceptual difficulties associated with applying the civil
standard of proof to future events. Davies v Taylor;[9] Patterson v BTR Engineering (Aust) Ltd.[10] To
require that the risk be proved to a particular standard would deprive the test of its necessary flexibility.
What must be established is that there is a sufficient likelihood of the occurrence of the risk which,
having regard to all relevant circumstances, makes it unacceptable. Hence the possibility an offender
may commit like offences has been viewed as sufficient to satisfy a court that there is an unacceptable
risk. R v Phung;44 MacBain v Director of Public Prosecutions.45
15.24
In Woods v DPP [2014] VSC 1, Bell J made the following remarks regarding its
exercise:
[42] This provision was present in the same form in the legislation as originally enacted in 1977.
[43] Section 4(2)(d)(i) operates to require bail to be refused despite the presumptive entitlement to bail. It
applies only where “the court is satisfied” that there is an unacceptable risk. Therefore the onus is on the
prosecution to persuade the court that the applicant does not represent an unacceptable risk. [Dale [2009]
VSCA 212 (21 September 2009) [28] (Maxwell P, Nettle JA and Lasry AJA)].
[44] As the court has repeatedly emphasised, the question is not whether there is no risk, for there is
always some risk if the accused is released on bail, but whether the risk is unacceptable [Paterson (2006)
163 A Crim R 122 at 129 [36] (Gillard J); Haidy v DPP [2004] VSC 247 (22 April 2004) [14] (Redlich
J) (Haidy); Scott [2011] VSC 674 (14 November 2011) [23] (T Forrest J)]. On the other hand, it was held
by Redlich J in Haidy v DPP [[2004] VSC 247 (22 April 2004) [16]] that a risk may be unacceptable
even though the prosecution has not established that the occurrence of the event is more probable than
not. According to his Honour, the prosecution had to establish that there is a sufficient likelihood of the
occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable‟.
[45] In determining whether the circumstances constitute an unacceptable risk as specified in s 4(2)(d)(i),
the court is required by s 4(3) to have regard to all relevant matters, including (but not limited to):
(a) the nature and seriousness of the offence;
(b) the character, antecedents, associations, home environment and background of the accused;
(c) the history of any previous grants of bail to the accused;
(d) the strength of the evidence against the accused;
(e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;
(f) any conditions that may be imposed to address the circumstances which may constitute an
unacceptable risk.
(1999) 107 A Crim R 358; [1999] FCA 921 per Gyles J at [56].
Supra at [21].
44 [2001] VSCA 81.
45 [2002] VSC 321 per Nettle J.
42
43
Page 24
[46] This provision was in substantially the same form when the legislation was originally enacted. One
important amendment was made by the Bail Amendment Act 2010 which introduced para (f) into s 4(3).
For the first time, an express link was thereby made between the imposition of conditions and the
administration of the unacceptable risk test. Previously there was authority for the proposition that it was
implicitly permissible to take the imposition of conditions into account when determining whether an
accused represented an unacceptable risk. For example, in MacBain v DPP [[2002] VSC 321 (9 August
2002)], Nettle J formed the view that, if conditions of a particular kind were imposed, the risk that the
applicant would not appear and the risk that she would re-offend whilst on bail may be reduced to a level
which should be regarded as acceptable in all the circumstances‟ [Ibid [17]]. The amendment of s 4(3) to
include para (f) makes clear that this is the correct approach and also underlines the significance of
conditions under the modernised statutory regime.
[47] The test in s 4(2)(d)(i) is expressed in terms of “unacceptable‟ risk not in terms of the magnitude or
degree of the risk. Moreover, not all of the circumstances specified in s 4(3) relate to the degree of the
risk. It follows, as Redlich J pointed out in Haidy, that [t]he degree of likelihood of the occurrence of the
event may be only one factor which bears upon whether the risk is unacceptable‟ [[2004] VSC 247 (22
April 2004) [18]. Consistently with the presumption of innocence and the prosecutorial onus of proof, it
is the overall effect of the multiplicity of considerations in the individual facts and circumstances of
the case which must be considered. In consequence, bail may be granted though a risk of offending or
not answering bail is relatively high when other circumstances, such as inordinate delay between arrest
of the accused and trial or a weak prosecution case, lead to the conclusion that the risk is not
unacceptable, having regard to the presumed innocence, right to liberty and other human rights of the
accused and relevant public interest considerations. Conversely, a relatively low risk of reoffending may
be overwhelmed by considerations on the opposite side, such as a high risk of not answering bail, which
establish that the risk is unacceptable [See Mokbel v DPP (No 3) [2002] VSC 393 (4 September 2002)
[10] (Kellam J) (approved in Barbaro [2009] VSCA 26 (3 March 2009) [41] (Maxwell P, Vincent and
Kellam JJA); Haidy [2004] VSC 247 (22 April 2004) [18]–[19] (Redlich J); R v Wakefield (1969) 89
WN (Pt 1) (NSW) 325 at 327 (Cross Ch QS)].
Predictive exercise — identifying past conduct with precision
15.25
An advocate should impress upon the decision maker the need to identify not only that
there is a risk but, but that risk is unacceptable and why. Section 38(1) provides that a
bail authority that refuses bail must immediately record the reasons for the refusal,
including the unacceptable risks identified. Section 38(2) provides that a bail authority
that imposes bail conditions must immediately record the reasons for not granting
unconditional bail and the unacceptable risks identified.
15.26
These requirements for reasons apply to a court, authorised justice and police officer
making a decision regarding bail.
15.27
In Woods v Director of Public Prosecutions [2014] VSC 1 at [43]-[47] the court
referred to the importance of individual circumstances of a case in considering
detention:
Page 25
[25] “It is established that the bail authority must carefully consider the facts and circumstances of the
individual case and determine whether the continued detention of the accused is justified: Matznetter v
Austria (1979–80) 1 EHRR 198; Clooth v Belgium [1991] ECHR 71; (1992) 14 EHRR 717, (‘Clooth’);
Yagcı and Sargin [1995] ECHR 20; (1995) 20 EHRR 505; Panchenko v Russia [2005] ECHR 72
(18February 2005). As was held in Clooth v Belgium, reliance by the prosecution on ‘general and
abstract’ considerations and a ‘stereotyped formula’, without more, will be insufficient. Particular
allegations, such that the accused would disturb public order, must be based on facts reasonably capable
of showing that kind of threat: Letellier v France [1991] ECHR 35; (1992) 14 EHRR 83, Moreover,
generalised concerns that an accused might abscond are not regarded as sufficient justification for
refusing bail. For example, in W v Switzerland [1993] ECHR 1; (1994) 17 EHRR 60, (applied Yagci and
Sargin [1995] ECHR 20; (1995) 20 EHRR 505 the court stated:
the danger of absconding cannot be gauged solely on the basis of the severity of the possible
sentence; it must be assessed with reference to a number of other relevant factors which may either
confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pretrial detention. In this context, regard must be had in particular to the character of the person
involved, his morals, his assets, his links with the State in which he is being prosecuted and his
international contacts.”
15.28
Some guidance as to the decision making process can also be derived from the
immigration law context. In Minister for Immigration and Citizenship v Makasa [2012]
FCAFC 166 the court had regard to the importance of the Government’s objectives:
[81] The Minister also relied upon the provisions of para 10.1(1) which require the decision-maker to
consider the Government’s objectives stated in Pt 1, para 5 of Direction 41. In particular, para 5.1(2)
states that the Government seeks to protect the Australian community from unacceptable risks of harm
as a result of criminal activity or other serious conduct.
[82] In our opinion, the objective stated in this paragraph is not to be read in the broad manner that was
suggested by the Minister. Rather, it seems to us that the words “unacceptable risk” and “as a result of”
indicate that the objective is one of protecting the community from risks of future criminal activity or
other serious conduct. It says nothing about the way in which the assessment of the risks is to be
determined. In particular, it does not suggest that the risks are to be determined by an
impressionistic assessment founded upon an apprehension as to whether past conduct has
occurred […].
15.29
The Full Court confirmed the reasoning of Perram J in Makasa v Minister for
Immigration and Citizenship [2012] FCA 321 stating:
[11] But this does not mean that cl 10.1 authorises the assessment of a risk of harm divorced from
findings of actual past conduct.
[13] This, with respect, is not correct: cl 10.1 requires the identification of past conduct, not an
impressionistic appraisal of that which may be reasonably apprehended to have happened. The process of
reasonable apprehension is relevant but only once the past conduct is identified and only for the purpose
of assessing the future harm to the community.
Page 26
15.30
See also Nigro v Secretary, Dept of Justice (2013) 304 ALR 535; [2013] VSCA 213:
[6] Whether a risk is unacceptable depends upon the degree of likelihood of offending and the
seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the
occurrence of the risk which, when considered in combination with the magnitude of the harm that may
result and any other relevant circumstance, makes the risk unacceptable. These matters must be
established by acceptable and cogent evidence. The principle in Briginshaw is relevant to an evaluation
of the quality and sufficiency of the evidence. The court must be satisfied to a high degree of probability
that there is an unacceptable risk. That is a standard well above the civil standard and approaching the
criminal standard.
[7] The test of unacceptable risk does not require a particular degree of risk. It need not necessarily be
more likely than not. The lower likelihood of risk stated in s 9(5) is not to be confined to a particular
category of offence. The likelihood may be moderate and equate to the average sex offender risk to be
unacceptable in a particular case.
15.31
Whilst the Court in Nigro was not considering bail decisions, the approach urged is
appropriate given the consequences of denial of bail. In the cut and thrust of the Local
Court, sometimes assertions based on generalised assumptions about human behaviour
go unchallenged. A reminder to the court of the need to base decisions about risk on
“acceptable and cogent evidence” is important, especially in these early days, where the
practices of the future are in the process of being established.
Does the court have regard to the presumption of innocence?
15.32
The purpose of the Act is provided for in s 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.
15.33
In the second reading speech, the Attorney General observed that it was “appropriate that
these important legal principles [in s 3] be considered as part of the bail decision-making
process.”
15.34
There is no express reference to s 3 in the exhaustive factors set out in s 17(3), but there is
an arguable gateway in s 17(3)(g).
Page 27
15.35
Its principled application was discussed in in Williamson v Director of Public
Prosecutions [1999] QCA 356; [2001] 1 Qd R 99, Thomas JA (McPherson JA
agreeing) said at 103 [22]:
“No grant of bail is risk-free. The grant of bail, however, is an important process in civilised societies
which reject any general right of the executive to imprison a citizen upon mere allegation or without
trial. It is a necessary part of such a system that some risks have to be taken in order to protect citizens in
those respects. This does not depend on the so-called presumption of innocence which has little
relevance in an exercise which includes forming provisional assessments upon very limited material of
the strength of the Crown case and of the defendant’s character. Recognising that there is always some
risk of misconduct when an accused person or for that matter any person, is free in society, one moves to
consideration of the concept of unacceptable risk.”
15.36
Compare these comments with the recent remarks of Bell J when considering Section
4(2)(d) of the Victorian Act Woods v Director of Public Prosecutions [2014] VSC 1 at
[43]-[47]:
[4] With respect to the importance of the presumption of innocence and the prosecutorial onus of proof, I
would refer to this recent statement by Kiefel J in Lee v New South Wales Crimes Commission:
The golden thread of the system of English criminal law is that it is the duty of the prosecution to
prove the prisoner’s guilt. This is consistent with the presumption of an accused’s innocence. It find
expression as a fundamental principle of the common law of Australia.
[29] As can be seen from the decisions of the European Court of Human Rights and that of Refshauge J
in Seears, a fundamental requirement of human rights law in the context of bail is that the individual
facts and circumstances must be properly considered before the severe step of depriving the accused of
his or her liberty is taken. The need to approach the determination of applications for bail in this way is
well established in this court. For example, in Re Moloney60 Vincent J was determining an application to
which the exceptional circumstances test (see below) applied. Of the need to take all of the
circumstances into account, his Honour said:
A number of decisions which have been handed down by judges in this court … make it clear that
such circumstances may exist as a result of the interaction of a variety of factors which of themselves
might not be regarded as exceptional. What is ultimately of significance is that, viewed as a whole,
the circumstances be regarded as exceptional to the extent that, taking into account the very serious
nature of the charge to which they are applicable, the making of an order admitting the person to bail
would be justified.61
Applying that approach in Re Whiteside,62 another exceptional circumstances case, Warren J (as the
Chief Justice then was) stressed that “each case will be different and each set of facts and circumstances
will need to be considered and weighed up before determining whether or not exceptional circumstances
are made out”.63 As we will see, this approach is generally followed not just in the application of the
exceptional circumstances test but also in cases to which the show cause and unacceptable risk tests (also
see below) apply.
[30] Before turning to those tests, I want to draw attention to the purpose of bail as discussed in the
authorities. Under the Bail Act, the court is required to take into account a number of matters which
always include whether the accused represents an unacceptable risk of failing to answer bail, committing
Page 28
offences on bail, endangering the safety or welfare of the public or interfering with witnesses (s 4(2)(d)).
Without in any way doubting the importance of the other considerations, the primary purpose of bail is to
ensure the attendance of the accused at his or her trial and the associated preliminary hearings.64 As was
held in R v Mahoney-Smith65 in the Supreme Court of New South Wales by O’Brien J, “the grant or
refusal of bail is determined fundamentally on the probability or otherwise of the applicant appearing at
Court as and when required”.66 R v Sefton67 was decided in our court under the common law. Cussen J
held that, in “ordinary cases”, bail was granted “if by taking recognisances … appearance can be
practically ensured”.68 In R v Light,69 also a common law case, Sholl J held this to be the “first matter
of consideration”. It was described as “the primary question” by Gillard J in Re Paterson70 and Eames J
in Director of Public Prosecutions v Ghiller.71 Both of these cases were decided under the Bail Act.
[31] Of course, a refusal of bail will usually result in deprivation of liberty. But that must be for the
purposes of bail and not for the purpose of punishment.72 Having regard to the presumption of
innocence and the prosecutorial onus of proof, bail cannot be used for that or other impermissible
purposes, such as pressuring an accused to cooperate with police, however strong the case for the
prosecution may be.
Onus and standard of proof
15.37
This question was discussed during the Parliamentary Debates of the NSW Legislative
Council on 22 May 2013, when the Honourable Michael Gallacher said:
"Under the Government's bill, if the prosecution asserts that there is an unacceptable risk associated with
granting bail, the prosecution will have to establish the existence of an unacceptable risk. The standard of
proof will be on the balance of probabilities, as is the case under the current Bail Act." (p. 20, 584)
15.38
This was noted in the (2014) Judicial Officers' Bulletin article by Christopher White:
"In relation to establishing unacceptable risk, if the prosecution asserts that such a risk exists, it will fall
to the prosecution to establish its existence on the balance of probabilities." (p. 2)
15.39
The position under the 2013 Act follows the common law position in NSW pre: Bail
Act 1978: R v Wakefield (1969) 89 WN (Pt 1) NSW 325. It is also in keeping with the
Victorian case law on bail: Bail Application of Michael Paterson [2006] VSC 268.
15.40
In addition, section 3(2) of the 2013 Act requires that the bail decision maker have
regard to the presumption of innocence and the general right to liberty. This was
reiterated in the 2nd reading speech: NSW Legislative Assembly, Parliamentary
Debates, 1 May 2013, p.19, 839. As such the prosecution bears the onus of proof with
regard to the existence of the risks asserted.
15.41
In R v Lago [2014] NSWSC 660, Hamill J made the following remarks about the onus
of proof:
Page 29
[6] In helpful written submissions, Ms Rigg submits that there is an onus on the prosecution. I am not
sure that that is so but equally I am not sure that it matters. The reason that I say that is because the
matter ultimately is to be determined on the balance of probabilities (s32) and, when I come to it, it will
be seen that the onus shifts to the prosecution at a more important stage of the reasoning process.46
15.42
In a subsequent decision, R v Alexandridis [2014] NSWSC 662, his notes states that:
[10] It can be seen that s 20 casts an onus on the party opposing bail. The standard of proof for all
matters to be determined under the Act is provided by s 32 and the standard is the balance of
probabilities. As I have said the Act does not change certain fundamental concepts that lie in the heart of
our criminal justice system. An accused person is presumed to be innocent. The ultimate standard of
proof before punishment that can be imposed by the State is proof beyond a reasonable doubt. And third,
an accused person is generally entitled to be at liberty until the resolution of the allegations made against
them.
15.43
The standard of proof is set out in s32 of the Act:
Matters to be decided on balance of probabilities
(1) any matter that must be decided by a bail authority in exercising a function in relation to bail is to be
decided on the balance of probabilities.
(2) This section does not apply to proceedings for an offence in relation to bail.
15.44
It is worth noting that in the extract of Nigro v Secretary, Dept of Justice (2013) 304
ALR 535; [2013] VSCA 213 set out above, the Court was of the view that the
Briginshaw standard applied. Given the criminal allegations underlying the application,
and the serious consequences which flow to an accused person, despite the presumption
of innocence, if bail is refused, it is at the very least arguable that the Briginshaw
standard of proof is required in relation to bail decisions.
16.
Mitigating Unacceptable Risk
An Overview
16.1
The risk/mitigation approach was explained in Dale v Director of Public Prosecutions
[2009] VSCA 212. Maxwell P, Nettle JA and Lasry AJA said at [57]-[58]:
[57] Axiomatically, whether risk is unacceptable depends on all the circumstances of the case. Risks
which would otherwise be unacceptable may be reduced, by the imposition of appropriate bail
conditions, to a level which would be regarded as acceptable in all the circumstances [MacBain v DPP
(2002) VSC 321, [17] (Nettle J)]
That “more important stage” is the question of whether any unacceptable risk can be mitigated by the imposition of
conditions. That issue is considered in more detail below.
46
Page 30
[58] Since no release on bail is without risk, however stringent the conditions, the question in the end is
whether such risk as remains should be tolerated. In this case, given the long delay and severe
consequences of incarceration for the appellant, that depended in part on whether there would be a
greater risk if the appellant were released on bail than there was while he remained in gaol.
16.2
In R v Alexandridis [2014] NSWSC 662 Hamill J set out:
[9] Section 20(1) is a critical provision in the Act, and it is in the following terms:
"A bail authority may refuse bail for an offence only if the bail authority is satisfied that there is an
unacceptable risk that cannot be sufficiently mitigated by the imposition of bail conditions".
[10] It can be seen that s 20 casts an onus on the party opposing bail. The standard of proof for all
matters to be determined under the Act is provided by s 32 and the standard is the balance of
probabilities. As I have said the Act does not change certain fundamental concepts that lie in the heart of
our criminal justice system. An accused person is presumed to be innocent. The ultimate standard of
proof before punishment that can be imposed by the State is proof beyond a reasonable doubt. And third,
an accused person is generally entitled to be at liberty until the resolution of the allegations made against
them.
[11] In that last respect, the words of Sperling J in R v David Peter Cain (No. 1) (2001) 121 A Crim R
365 continue to apply. His Honour spoke of the interests of the applicant, his legitimate claim to be at
liberty and to be with his family living a lawful life pending trial. In that case, the applicant had been in
custody for a year and was likely to stay in custody for a further year before trial. His Honour concluded
by saying this:
"The prospect that a private citizen who has not been convicted of any offence likely imprisoned for
as long as two years pending trial is, absent exceptional circumstances, not consistent with modern
concepts of civil rights."
[12] That was the position under the Bail Act 1978 and it continues to be the position today. The length
of the adjournment or remand period is a matter specifically referred to in s 17(3)(g). So that in assessing
whether there is an acceptable risk, one of the factors to be taken into account is the length of time the
accused person is likely to spend in custody if bail is refused.
16.3
Once it has been determined that there is an unacceptable risk, the bail decision maker
then has to consider whether the imposition of conditions can mitigate that risk. Section
20(1) relevantly provides:
(1) A bail authority may refuse bail for an offence only if the bail authority is satisfied that there is an
unacceptable risk that cannot be sufficiently mitigated by the imposition of bail conditions.
16.4
This adopts the Victorian approach which was first set out by Nettle J in McBain v
DPP [2002] VSC 321.
16.5
This approach is a significant change from the old Act, because it directs attention to
the way in which bail conditions are likely to affect the risk identified in s 17. Section
20 needs to be read in conjunction with s 24 which provides:
Page 31
(1) A bail condition can be imposed only for the purpose of mitigating an unacceptable risk.
(2) Bail conditions must be reasonable, proportionate to the offence for which bail is granted, and
appropriate to the unacceptable risk in relation to which they are imposed.
(3) A bail condition is not to be more onerous than necessary to mitigate the unacceptable risk in relation
to which the condition is imposed.
(4) Compliance with a bail condition must be reasonably practicable.
(5) This section does not apply to enforcement conditions.
16.6
The types of conditions which can be imposed are set out in Division 3, sections 25-30.
16.7
As was said earlier with respect to the need to be specific in relation to unacceptable
risk, there is now much more of an obligation to justify the imposition of particular
conditions. For example, many prosecutors have historically made an almost automatic
request for the imposition of a reporting condition. In this new landscape, it falls to the
prosecutor to establish, on the balance of probabilities, that such a condition is required
to mitigate the specific unacceptable risk identified in the earlier step.
16.8
A reporting condition might be thought to mitigate a risk of non-appearance. However,
a reporting condition has at best a tenuous connection where the relevant risk is one of
endangering the safety of victims.
Condition types
16.9
As will be seen below, to an extent those links between conditions and the enumerated
risks is governed by the structure of Part 3 Division 3 (ss 23-30). The conditions are
broken down into various categories, which will now be considered in turn.
16.10
A conduct requirement is defined in s25 as a broad requirement that a person do or
refrain from doing anything: s25(2) (other than to provide security for compliance with
a bail acknowledgement: s25(3)). This is the mechanism by which familiar restrictions
such as place restrictions, not approach conditions, and non-consumption of alcohol
conditions might be imposed. Conduct requirements are subject to the general
requirement that they can only be imposed to mitigate an unacceptable risk: s24(1).
16.11
A security requirement (s26) contemplates either the forfeiting or deposit of a sum of
money in the event of non-compliance with a grant of bail. One significant change in
Page 32
respect of such conditions is that they are only to be imposed where there is an
unacceptable risk of a failure to appear under s17(a).
16.12
In Lago, Hamill J made the following observation:
[28] I do not impose any security requirements because I am prohibited from doing so under the terms of
the legislation, unless I am of the view that he poses an unacceptable risk of non-appearance: s 26(5). I
am not of the view that the applicant is an unacceptable risk of non-attendance. I record my opinion that
this is something of a problem in the legislation.
16.13
However, it is suggested that this requirement is entirely consistent with the traditional
understanding of the role of a surety in bail decisions. That role was considered in some
detail by Gillard J in R v Mokbel & Mokbel [2006] VSC 158:
[53] ... The importance of the undertaking by the surety cannot be overstated. The Court, once it grants
bail, is not in a position to supervise obedience to the order and conditions. It relies upon a surety or
sureties to perform that task. In that sense, the surety acts as both the eyes and ears of the Court. The
surety undertakes the duty to ensure that the principal, that is, the accused, honours his undertaking to the
Court to appear at trial and to attend each day of the trial. The obligation was stated by Lord Alverstone
CJ, speaking for the Court in The Queen v Porter [[1910] 1 KB 369 at 373], when his Lordship said:
"It is in the interests of the public that criminals should be brought to justice, and, therefore, that
it should be made as difficult as possible for a cirminal to abscond; and for many years it has been
held that not only are bail responsible on their recognizance for the due appearance of the person
charged, but that, if it comes to their knowledge that he is about to abscond, they should at once
inform the police of that fact."
[55] The surety must be independent and undertake a real obligation. This means that the surety must put
his or her money at risk. Hence, by reason of s.31 of the Bail Act it is a criminal offence for a person to
indemnify a surety, and an agreement by which an accused undertakes to indemnify a surety constitutes a
conspiracy to effect a public mischief [See The King v Porter supra]. It is vital that the surety
understands the obligation to ensure that the accused honours his or her undertaking to attend the trial.
[56] In addition to the undertaking given by the surety, the amount of the undertaking is fixed to provide
a disincentive to the accused to abscond. The amount of the surety exerts a pressure on the accused to
honour his undertaking. It was described as "the real pull of bail" by Lord Widgery CJ in R v South
Hampton Justices, ex parte Corker, [(1976) 120 SJ 214], where his Lordship said:
"The real pull of bail, the real effective force that it exerts, is that it may cause the offender to
attend his trial rather than subject his nearest and dearest who have gone surety for him to undue
pain and discomfort."
(Quoted in R v Uxbridge Justices ex parte Heward-Mills [[1983] 1 WLR 56 at 59])
16.14
A character acknowledgment (s27) has been brought across from the old Act. It is an
acknowledgment by an acceptable person to the effect that they are acquainted with the
accused person and regard them as a responsible person who is likely to comply with
Page 33
their bail acknowledgment. It is subject to the general requirement in s24 that it
mitigate an identified unacceptable risk.
16.15
An accommodation requirement (s28) is a form of pre-release requirement (see below)
which applies only where the accused is a child: s28(3). It amounts to a direction that
suitable arrangements be made for the accommodation of the accused. Under s28(4) the
court responsible for imposing the condition is to relist the matter for further hearing
every 2 days until the condition is complied with.
16.16
Pre-release requirements are dealt with in s29. These conditions must be complied with
before an accused in custody is released on bail. Such conditions can only be conduct
requirements, security requirements or accommodation requirements. Once all prerelease requirements are complied with, the accused can be released without further
listing before the court.
16.17
Enforcement conditions (s30) are those conditions which were invalidated in Lawson v
Dunlevy [2012] NSWSC 48, and are directed to conditions designed to ensure
compliance with other bail conditions. They can only be imposed by a court at the
request of the prosecutor: s30(3)(b).
16.18
They are not subject to the limitation in s24, but can only be imposed if the court
considers them reasonable and necessary in the circumstances, having regard to the
history of the person, the likelihood of the person committing further offences, and the
extent to which compliance might unreasonably affect other persons: s30(5).
Page 34
Bail Checklist
Unacceptable risk?
Y
e
Can conditions
sufficiently mitigate
risk?
N
o
Refuse bail
N
o
Unconditional release
Y
Conditional release
s17 Unacceptable Risk
(2) Risk of what?
(a) fail to appear at any proceedings for the
offence;
(b) commit a serious offence;
(c) endanger the safety of victims, individuals
or the community; or
(d) interfere with witnesses or evidence.
(3) Relevant factors
(a) background, including criminal history,
circumstances and community ties;
(b) nature and seriousness of offence
(inc 17(4)):
- offence of sex/violence;
- likely effect of offence on victim or
community
- number of offences likely to be
committed, or for which bailed/paroled;
(c) strength of prosecution case
(d) any history of violence;
(e) previous serious offences on bail;
(f) pattern of non-compliance with bail,
AVOs, parole, bonds
(g) likely remand time if bail refused;
(h) likelihood of custodial sentence if
convicted;
(i) (appeals) whether reasonably arguable
prospects of success;
(j) any special vulnerability inc ATSI/ID/MH;
(k) need to be free to prepare; and
(l) need to be free for any other lawful reason.
s24 Conditions
(1) only to mitigate unacceptable risk
(2) must be reasonable, proportionate to
offence, and appropriate to unacceptable
risk
(3) not to be more onerous than necessary to
mitigate unacceptable risk
(4) compliance must be reasonably practicable
s25 Conduct requirements
That a person do or refrain from doing any
thing (except provide security), eg:
o Place restriction
o No contact
o Not approach
o Not consume alcohol/drugs
s26 Security requirements
(only for risk of failure to appear: 26(5) and where conduct
requirements insufficient)
(2)(a) Agreement to forfeit sum
(2)(b) Deposit of specified sum
(Court determines “acceptable security”)
s27 Character acknowledgment
(only where conduct requirements insufficient)
s28 Accomodation requirement
(children only)
s29 Pre-release requirement
s30 Enforcement conditions
(where reasonable and necessary, having regard to history & risk of
further offences)

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