New Bail Act

Today, the new Bail Act 2013 (“the new Act”) will commence, replacing the Bail Act 1978. The new Act contains many significant changes in the manner in which someone will be treated when they appear before a Court seeking to be released from police custody on bail.

Whilst the new Act streamlines and appears to simplify the bail process, we believe it may also increase an accused person’s prospects of being granted bail, however it is yet to be tested by the Courts.

The most significant changes in the new Act when compared to the Bail Act 1978 are:

1. What was formally known as a ‘bail application’ has been replaced with a ‘release application’.

2. The Police and/or the Courts when making a decision regarding bail, are to have regard to that person’s presumption of innocence and their general right to be at liberty – section 3(2).

3. There are no longer any presumptions for or against bail. There is a right to release on some minor offences (whether with or without bail), however, all other offences are essentially ‘equal’ and the same considerations will be applied for each release application.

4. The key consideration for the Act will be the focusing on an “unacceptable risk” – section 17. Before making a bail decision a bail authority (the Court) must consider whether “there is an unacceptable risk”. If the Court deems that there is a risk the next question to ask is “can the risk be lessened by imposing conduct or security requirements.”

For example, conditions such as where someone will reside, if they are to report to the Police, if they must abide by a curfew or if any money is to be forfeited by them or another person. If the Court finds that no conduct or security will lessen the risk, bail will be refused.

5. The onus is on the Prosecution (the Police) to show that an accused is an unacceptable risk. Factors to be considered in assessing whether a person is an unacceptable risk are:

  • Will they fail to appear at any proceedings for the offence;

  • Will they commit a further offence;

  • Will they endanger the safety of victims, individuals or the community;

  • Will they interfere with witnesses or evidence.

6. The Police or the Court must also take into account various matters to determine if an accused is an unacceptable risk, including their personal background, their criminal history, the nature and seriousness of the offence and the strength of the prosecution case.

If the Court finds that there is not an unacceptable risk the offender will be released from custody, either with or without conditions.

7. In relation to an alleged breach of bail, the new Act sets out a hierarchy with how police officers are to deal with this allegation – section 77. Factors to be considered by the police when dealing with a breach or suspected breach of bail, are clearly enunciated in section 77(3).

If you know anyone who may wish to make an application for Bail, now, or under the New Act, please contact Moin & Associates Lawyers.

  • Chelsea Schaefer - (02) 6772 4899

The information contained in this blog is a general summary only and is not intended to be legal advice. You should seek specific advice in relation to your particular circumstances.

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