The new Bail Act is being applied in court and our experienced lawyers are ready to help you get released from custody now. Call us on 1800 100 529 and let us help you get bail from the start!
Under the new Act, a bail application is now called a ‘release application’.
The new Bail Act is very different to the old and very complex Act which was mended over 80 times in the past 36 years. The new legislation is based on an ‘unacceptable risk’ analysis and is much easier to understand and apply in court.
What is unacceptable risk?
Section 17(2) sets out four unacceptable risks to be considered:
That the accused will fail to appear at any court proceedings,
Commit a serious offence,
Endanger the safety of victims, individuals or the community, or
Interfere with witnesses or evidence.
The above points are the prime considerations in deciding the bail outcome.
What will the court consider to determine if there is an unacceptable risk?
Section 17(3) sets out the factors that must be considered when determining unacceptable risk. They include:
The accused person’s background, criminal history, personal circumstances and community ties
The nature and seriousness of the offence
The strength of the Prosecution case
If the accused person has a history of violence
Has the accused person previously committed a serious offence while on bail
Does he/she have a pattern of non-compliance with bail, AVOs, parole or good behaviour bonds
The length of time the accused person is likely to spend in custody if bail is refused
The likelihood of a custodial sentence being imposed if the accused person is convicted of the offence
If the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success
Any special vulnerability or needs the accused person has including youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment
The need for the accused person to be free to prepare for their appearance in court or to obtain legal advice
The need for the accused person to be free for any other lawful reason
What will happen if there is an unacceptable risk?
The court can either grant or refuse bail. The ultimate question is whether the unacceptable risk can be mitigated by the imposition of bail conditions.
If the court determines that the unacceptable risk can be mitigated by conditions, then bail will be granted with conditions (see section 19).
If the court determines that the unacceptable risk cannot be sufficiently mitigated by the imposition of bail conditions, then bail will be refused (see section 20).
What will happen if there is no unacceptable risk?
If the court determines that there is no unacceptable risk, the court must release the accused person without any conditions. This is strict rule under section 18.
Multiple application for bail – is it easy now?
Unfortunately, the new Bail Act replicates the old section 22A from the old legislation. Section 74 of the new Bail Act states that a court must refuse to hear multiple release or detention applications unless:
The person was not legally represented when the previous application was dealt with and the person now has legal representation, or
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
Circumstances relevant to the grant of bail have changed since the previous application was made, or The person is a child and the previous application was made on a first appearance for the offence.
What is a serious offence as defined by the new Bail Act?
The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence (or the seriousness of an offence), but do not limit the matters that can be considered:
Whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument
The likely effect of the offence on any victim and on the community generally
The number of offences likely to be committed or for which the person has been granted bail or released on parole.
Some Conditions that the Court may Impose:
A residential address
Reporting to police during the week
A curfew, that requires you to be at home during certain hours
Surrendering your passport
Agreeing to pay money if you do not attend court
Surety: requiring another person to deposit money and/or sign an undertaking to pay money if you do not attend court or breach your bail conditions
Not to contact witnesses, alleged victims or co-accused persons
Attending drug and alcohol or rehabilitation courses
Comply with AVO
Can you change your bail conditions?
Yes you can, however you must make an application at Court to vary your bail conditions. This usually happens when you change your address or need to reduce your reporting conditions or change the curfew. Contact us now to arrange a bail variation application in your matter.
Refused Bail in the Local Court? Appeal to the Supreme Court
If you have been refused bail by the Local Court you may apply for bail to the Supreme Court. If your case has been transferred from the Local Court to the District Court you may apply for bail at the District Court. One of our expert lawyers will look out for you in this difficult time and help you prepare for this kind of appeal. Contact us now to arrange a meeting for advice on the best options for you.