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The Rule of Law and NSW Bail Laws

The rule of law requires checks and balances on the use of government power. The most important check on government power for an individual is that the individual should be at liberty unless it is proven that they have broken the law. This is known as the presumption of innocence. The criminal trial process seeks to provide justice according to the law. The trial process is not often described as a check on the power of government, but it is one of the most elaborate and careful checks on the power of the executive that exists.

The presumption of innocence ensures that a person must be proven guilty according to the law before they are punished. The presumption of innocence is not absolute – there are good reasons why a person can be deprived of their liberty before being found guilty. The process of granting or refusing bail in the courts in the legal process which balances the right of the individual to be presumed innocent with the safety of the community and the interests of justice.

It is for this reason that the presumption of innocence is a key principle of the rule of law, and why bail laws should be studied and scrutinised.

Case Law

2015 Bail Decisions in the Supreme Court, Court of Appeal and Court of Criminal Appeal. Rebekah Rodger, Maurice Byers Chambers.

Lengthy remand period and separation from 3 month old child perpetuates cycle of disadvantage – R v Alchin, NSWSC, McCallum J, 16 Feb 2015 – Aggravated enter of a dwelling knowing there was people present

Residential rehabilitation – R v Benzce; Yates – NSWSC, McCallum J, 18 Feb 2015 – Domestic Violence Offences

Mental illness and brain damage – R v Burke – NSWSC, McCallum J, 16 Feb 2015 – Firearms (replica pistol) offence

Being young and in custody for the first time – R v Goodwin, NSWSC, Hall J, 11 Mar 2015 – Supply of prohibited firearm

Weakness in prosecution case and the length of remand – R v Toksoz [2015] NSWSC 1234 – offences of shooting with intent to murder (two counts)

Being the best person to care for his severely disabled son – R v Xi [2015] NSWSC 1575 – large commercial supply of methamphetamine

Lack of appropriate medical treatment in custody – R v Najem, SCNSW, Wilson J, 18 Feb 2015 – Driving whilst suspended, break and enter offences

Legal Aid Key Bail Cases Summary and Links to Judgements

Further Reading on NSW Bail Laws

In 2014 the law regarding the granting of bail in NSW underwent significant change. These changes are discussed in NSW Bail Laws – Review Too Soon?

Hatzistergos Review of the 2013 Bail Act

Sentencing Council Report on Bail – Additional Show Cause Offences

Bureau of Crime Statistics and Research Report on Show Cause and Remand Population

ALRC Freedoms Inquiry Interim Report on aspects of a ‘fair trial’ pp.279-80

NSW Law Reform Commission Report on Bail