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Bail Law and Practice: Recent Developments

Bail Law and Practice: Recent Developments

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. 15/2002 by Rowena Johns

This briefing paper gives a general overview of bail legislation and procedure in New South Wales as a basis for a more detailed discussion of statutory amendments introduced in recent years. The other major area explored is the increasing emphasis on participation in diversionary and rehabilitation programs as a condition of release on bail.

Interpretation of the Bail Act 1978 (pages 4-16)
The operation of bail in New South Wales is governed by the Bail Act 1978 . Bail becomes an issue when a person is charged by the police with a criminal offence. The accused may be released on bail by an authorised police officer or at a court appearance. The Local, District and Supreme Courts all have the power to grant bail. Under the Act, the availability of bail is divided into categories: a general entitlement to bail for minor offences under section 8(1) ; a presumption against bail for serious drug offences involving commercial quantities (s 8A); and a presumption in favour of bail for the remainder of crimes, except where the presumption has been specifically removed, such as for murder, manslaughter, serious sexual and drug offences, armed robbery, firearm offences, domestic violence, and for certain categories of repeat offenders (ss 9, 9A, 9B).

In determining whether or not to grant bail for an offence which does not carry an entitlement to bail, four criteria shall be considered by the court or police: the probability of whether the accused will appear in court; the interests of the accused; the protection of victims and relatives; and the protection and welfare of the community: s 32. The conditions that may be imposed on the grant of bail are specified in ss 36-37, including restrictions upon conduct, attendance at a rehabilitation program, or an acceptable person agreeing to forfeit an amount of money if the accused fails to comply with the bail undertaking. The rest of the Bail Act 1978 deals with the enforcement of bail agreements and the powers for reviewing bail decisions.

Summary of bail developments: 1978-2002 (pages 17-27)
The Bail Act 1978 introduced a broad presumption in favour of bail, although from the outset it nominated some exceptions such as armed robbery. Over time the exceptions proliferated, removing the presumption in favour of bail for certain domestic violence offenders in 1987, murder in 1993, manslaughter and a range of sexual crimes in 1998, possession of prohibited firearms in 2001, and so on. A presumption against bail was imposed in 1988 upon certain drug offences involving commercial quantities.

There have also been substantial procedural amendments, such as the Bail (Amendment) Act 1987 which stipulated that the Court of Criminal Appeal shall not grant bail pending an appeal against sentence or conviction passed in the District or Supreme Courts, unless special or exceptional circumstances exist. Recently, bail conditions have become more explicit in identifying the types of restraints that may be imposed on an applicant’s conduct. This was the effect of the Bail Amendment (Confiscation of Passports) Act 2002 and the Justice Legislation Amendment (Non-association and Place Restriction) Act 2001 .
Some amendments have endeavoured to make the bail process fairer for applicants, victims or other affected parties. For example, the Bail (Amendment) Act 1988 expanded the criteria under s 32 for determining bail, to require the police or court to take into account the protection of victims and their close relatives. The Bail (Amendment) Act 1989 provided that a special limited review of bail conditions may be held by a court when a person who has been granted bail remains in custody because they are unable to meet all the conditions of their bail.

Bail amendments in 2002 to target repeat offenders (pages 28-43)
In 2001 the Police Service and the Bureau of Crime Statistics and Research asserted that people who commit minor offences on a regular basis are responsible for a disproportionately large amount of the crime in New South Wales, and have a greater tendency to abscond on bail. The Government responded with the Bail Amendment (Repeat Offenders) Act 2002 , which excludes from the presumption in favour of bail those defendants who are on bail, parole, or serving a non-custodial sentence at the time of allegedly committing the present offence, and those previously convicted of an indictable offence (if the current charge is also indictable) or failing to appear in court.

Another aspect of the Bail Amendment (Repeat Offenders) Act 2002 is a recognition that the special needs of Aboriginal people, children, the intellectually disabled, and people with a mental illness should be taken into account when addressing the interests of the accused

(under s 32(1)(b)) in the course of determining bail. Amendments in the Legislative Council changed the concept of ‘community ties’ with respect to Aboriginal applicants, to emphasise the importance of extended family, kinship and place when assessing the probability that the accused will attend court (at s 32(1)(a)(ia)).

New bail provisions on intervention programs (pages 44-47)
The Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 was assented to on 29 November 2002 but had not commenced at the time of finalising this briefing paper for publication. The Act gives formal, legislative recognition to ‘intervention programs’ and other types of rehabilitation which can be undertaken by accused persons as a condition of bail. Intervention programs will be listed in the regulations to the Criminal Procedure Act 1986 and are expected to encompass various schemes that encourage offenders to engage in treatment, restitution, or reintegration into the community.

However, the Act removes the presumption in favour of bail if the alleged offence was committed while the accused was participating in an intervention program as a condition of being discharged without conviction for a prior offence.

Magistrates Early Referral Into Treatment program (pages 48-52)
The Magistrates Early Referral Into Treatment (MERIT) Program is a diversion scheme which allows defendants facing drug-related charges in the Local Court to be released on bail, before they are required to enter a plea to the charge, on the condition that the defendant complies with the treatment regime. A 12 month pilot was conducted at Lismore Local Court from July 2000. MERIT now operates in 24 Local Courts, mainly in regional

parts of NSW. Clinical assessment and treatment are administered by the appropriate Area Health Service.

Defendants who are charged with sexual or violent offences or strictly indictable drug offences are not eligible to participate in MERIT. The duration of the program is a minimum of 3 months, and successful completion is taken into account in the defendant’s favour at sentence. There were 266 graduates of MERIT by November 2002.

Bail schemes in Cabramatta (pages 53-55)
In March 2001, Premier Carr unveiled a package of initiatives to tackle drug-related crime in the suburb of Cabramatta. Release on conditional bail played a prominent role in the Cabramatta Anti-Drug Strategy, through the Police Drug Bail Scheme and the establishment of a local MERIT program. Cabramatta is the only location in metropolitan Sydney to be included in the MERIT network to date. Liverpool Local Court and the South Western Sydney Area Health Service coordinate the program.

The Police Drug Bail Scheme enables police to refer drug users who are Cabramatta residents to treatment services, or to impose a mandatory bail condition on non-resident drug users, banning them from returning to the Cabramatta area unless they have a legitimate reason for doing so. Between 1 July 2001 and 20 March 2002, police referred 33 people for assessment or treatment, and released 393 minor offenders on bail on the condition that they not return to Cabramatta.

Bail hostels (pages 56-62)
Bail hostels are residential establishments that accommodate people as a condition of their bail, and are endorsed or regulated by the government to some degree. In New South Wales, the only hostel exclusively for persons on bail is operated by the Department of Juvenile Justice for young Aboriginal offenders.

In the United Kingdom there are approximately 100 approved hostels for people on bail, licence, probation, or serving a community sentence. Some hostels are designated ‘bail only’. The management, regulation and inspection of the hostels is governed by the Approved Probation and Bail Hostels Rules 1995 and funding is provided by the Home Office. Some hostels are managed by a local probation service and others by a voluntary management committee. While the guidelines do not exclude particular offences from eligibility, a risk assessment is conducted on applicants and many hostels apply their own admission requirements and house rules.

Bail information schemes (pages 63-66)
Bail information schemes are a means of providing the court with factual, verified details about the defendant’s community ties and other subjective circumstances for the purpose of a bail application. Probation or bail officers interview the defendant, check information with independent sources and produce a written report.

The first bail information scheme commenced in the United States of America in the early 1960s. The concept was attempted in the United Kingdom in the mid-1970s and was revived in the late 1980s. An order issued by Her Majesty’s Prison Service in 1999 requires all establishments which hold prisoners on remand to have a bail information scheme in place. Probation officers do not express an opinion or make a recommendation in the bail information report but usually emphasise positive points. The report is supplied to the prosecution and the defence, who then may use it in court.

The bail information schemes in the USA are reputed to be more interventionist. Information that is gathered on community ties is scored on a fixed scale and is presented directly to the court by bail officers who make an explicit recommendation regarding the defendant’s suitability for bail.