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Bail in New South Wales

Bail in New South Wales

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 25/1997

Bail in one form or another has been a part of the common law since Anglo-Saxon times. The modern system of bail developed as a result of provisions in the Statute of Westminster I, in 1275, which prescribed for the first time a number of catagories of persons who were not to be bailed, and another list of persons who were not to be refused bail. This system is not so different from the scheme contained within the Bail Act 1978 (NSW) which commenced operation on 20 March 1980. A more thorough history of bail is contained in Part 2, and a history of the NSW Bail Act can be found in part 4.2.

New South Wales has the largest remand population in Australia - there were a total of 941 remand prisoners in NSW facilities on 1 May 1997. This represented 15.1% of the full time population in NSW prisons. In terms of numbers per 100,000 adult population the Northern Territory had the highest rate - 77.6 per 100,000 adult population, and Tasmania had the lowest rate - 9.0 per 100,000 adult population.

Bail is the granting of temporary liberty to a person charged with a criminal offence. It may be granted by the police or by a court. The rules applying to police and court bail are essentially the same. The operation of the Bail Act is examined in Part 4. The Bail Act implements a four-tiered regime of eligibility for bail. For those offences categorised as minor (generally, an offence that is not punishable by imprisonment) there is a right to release on bail, except in a number of exceptional circumstances. If the offence is categorised as non-violent, there is a presumption in favour of bail for the accused. The presumption may be rebutted if the prosecution can demonstrate that bail should not be granted. Certain offences which could be classified as violent do not enjoy the presumption in favour of bail. These offences include murder, aggravated robbery and domestic violence offences. In these cases the accused must prove to the court why bail should be granted. The final category relates to certain serious drug offences. In these cases, there is a presumption against bail being granted. Again, if the accused can prove to the court why bail should be granted, the presumption does not preclude the granting of bail. The Bail Act establishes very clearly the criteria which must be considered in any bail application. The criteria fall into four main categories: the likelihood of the accused appearing in court if bail is grated; the interest of the accused; the protection of the alleged victim, and the protection and welfare of the community. Only those considerations laid down in the Act can be considered in a bail application.

Bail may have conditions attached to it, or may be unconditional. Unless necessary to promote law enforcement or protect the victim or community generally, bail is to be unconditional. If bail conditions are necessary, no more stringent conditions are to be imposed than the offence and the circumstances of the accused warrant. Financial conditions are to be imposed only if no other condition is appropriate. Conditions may be imposed on the accused personally, or may involve a third person or persons, known traditionally as a surety, but termed an acceptable person in the Bail Act. If a person fails to comply with a bail condition, or fails to appear in accordance with the bail undertakings, he or she may have committed an offence against the Bail Act. These offences are outlined in Part 4.4. Reasons for imposing conditions are to be written down in accordance with the Bail Regulations, and may be the subject of an appeal, as may the bail decision itself. The review mechanisms are examined in Part 4.5.

When examining a system of bail, there are a number of important considerations to bear in mind. Foremost among these is the preservation of the presumption of innocence, which is a fundamental premise upon which our legal system rests. However, the interests of the victims of violent personal crime and those of the community in bringing the accused to trial are also important and must not be overlooked. The size of the remand population and conditions on remand are also relevant, particularly in light of the lengthy delays in hearing cases that some accused may face. Tables 5(a) and 5(b) illustrate the possible delays. The average length of time from arrest to determination in the Local Court in 1996 was 126 days for those on bail and 72 days for those on remand. In the higher courts, the time was even longer: 505 days from arrest to sentence for those on bail and 301 days was the average time for those on remand. It is also important to give special consideration to the interests of juveniles, who are particularly affected by being on remand. These considerations are canvassed briefly in Part 5.