In 2015 the Bail Act 2013 (NSW) (‘the Act’) was amended with the introduction of a ‘show cause’ test for serious offences. The show cause test requires an accused person to provide the Court with a valid reason or reasons as to why detention is not justified.  This is essentially an extra burden on the accused person in a bail application procedure charged with certain offences. These offences include murder, serious drug and sexual offences, and serious offences committed whilst already on bail. More amendments were made in 2017 and 2018 to include special provisions for terrorism and weapons offences. The offences which are considered show cause offences are found in Section 16B of the Act (Section 16B).

The Rule of Law Institute Australia has published a guide to bail in 2018, which really simplifies the issues, providing graphs and case studies to assist practitioners and accused people alike. This can be found here.

THE SHOW CAUSE TEST

Section 16A of the Act outlines that a person charged with a section 16B offence must show why their detention is not justified. An accused person under the age of 18 is not required to show cause. The section 16B offences are reserved for offences that are punishable by imprisonment for life; particularly sexual offences; serious personal violence offences; certain firearms offences; certain drug offences; and a serious indictable offence that is committed while the accused is on bail.

THE PROCESS

An accused provides evidence of why they should not be held on remand to the bail authority.

Remand is referred to a person taken into custody or detention whilst they await trial and are refused bail.

The factors that a Court may consider relevant in deciding this, are not limited by the Act. The accused must prove their case for bail ‘on the balance of probabilities’ (section 32). Some examples include

1. The Accused suffers from a serious medical condition and requires treatment that could not otherwise be facilitated in custody;
2. The accused must be out to attend to business needs; and
3. The prosecution case is weak

UNACCEPTABLE RISK TEST

If an accused satisfies the show cause requirement, they then must pass the unacceptable risk test.

Bail concerns under sections 17 and 18 of the Act must be considered. If the bail concerns mean that the person poses an ‘unacceptable risk’ bail can be denied, even if they have shown cause.

There are two stages to this test:

• Stage ONE: under section 17 – the Bail authority assesses the four bail concerns. An accused person who poses an unacceptable risk in relation to any of the four bail concerns found in the Act will be refused bail.

THE FOUR BAIL CONCERNS

That the accused will:

1. Fail to appear at any proceedings for the offence;
2. Commit a serious offence;
3. Endanger the safety of victims, individuals or the community; or
4. Interfere with witnesses or evidence

If these concerns are too great and there is an unacceptable risk that the bail conditions will not be sufficient to address these then the bail authority must DENY bail.

• Stage TWO: under section 18 – the bail authority has to consider a number of matters when assessing the bail concerns.
• There is a long list of matters which may be assessed in section 18. These range from: the criminal history of the person, the nature and seriousness of the offence, the strength of the prosecution case, bail compliance in the past, history of violence, community ties, Indigenous status, likelihood of re-offending, any criminal associations, if they have shown support for terrorism acts, if they are affiliated with any terrorists, or if there are any proposed conditions which could assist.

If an accused person is found NOT to be an unacceptable risk, they are released on bail. If they are found to be an unacceptable risk, bail conditions can be put in place to ameliorate any risk

BAIL CONDITIONS

As set out in section 20A of the Act, the bail authority must be satisfied that the bail conditions will achieve a basis sufficient enough to address the concern. It will need to be reasonable and proportional to the relevant offence for which bail is granted.

The condition cannot be more onerous than necessary, and there are reasonable grounds to believe they will be complied with.

TYPES OF BAIL CONDITIONS

There are numerous types of bail conditions set out in sections 23-30of the Act to suit various situations and backgrounds. These conditions are implemented to attempt to remedy any bail concerns that have positively been identified for an accused.

These types of bail conditions include conduct (section 25), security (section 26), accommodation (section 28), and pre-release requirements (section 29), character acknowledgements (section 27), and enforcement conditions (section 30).

Conduct requirements relate to whether the accused must do or not do something, for example report to the police on a regular basis. A security requirement is an amount of money that is put up by the accused, usually with the assistance of family and is provided to the bail authority to keep in case any conditions are breached. An accommodation requirement is that the accused has somewhere reasonable to stay if released on bail, this can be at their parents or a responsible friend’s house, if they are a child, otherwise staying at a rehabilitation facility if required. Pre-release requirements include things like surrender of passport or planning for treatment before an accused can be released on bail. Character acknowledgements are when an acceptable person provides a statement that they know the accused and they regard them as a responsible person who is likely to comply with the bail and any conditions. Enforcement conditions are implemented to monitor the accused and ensure compliance. These are imposed when there is a great risk of re-offending whilst on bail or a lengthy criminal history. Essentially, they prevent the accused from doing certain things, such as drink alcohol or take drugs. They may be required to undergo regular testing to prove compliance.

The bail authority will hear from both the accused and the prosecution on these issues to make its decision. If the prosecution believes that no conditions are suitable to address bail concerns, they will submit that bail should be denied. The accused or their lawyer will then argue that certain conditions will be enough to address any concerns that are raised. In other circumstances, the accused’s lawyers will agree to conditions sought by the prosecution, to avoid the risk that bail might not be granted.

SPECIAL PROVISIONS

Section 22A of the Act expressly states that if an accused is charged with a Commonwealth terrorist offence then the bail authority is madated to refuse bail, unless exceptional circumstances are established.

As always, finding the proper balance of individual freedom and overbearing government power to ensure the safety of all, is a tough one to manage in the legal sphere.

For more information on bail, written by prominent defence lawyer, Mr Michael Moussa - principal of National Criminal Lawyers^® click here