Have you ever wondered why Bail holds relevance to the rule of law? Have you ever wondered what bail is and how it continues to impact our modern Australian society? There is a lot of information out there and we have created three primary pages for you to check out that clarify the issue of bail. Click on the below images to follow the links!
What is bail and the bail process?
After an individual is arrested and charged with an offence, a bail authority including the police or a judge, will decide if they can spend their time in the community prior to their trial or if they will be held in goal (or remand) under the relevant Bail Act 2013. The primary considerations of the court include the safety of the community and to ensure the bail applicant will appear at court throughout the trial process. This differs to the perspective that bail acts as a punishment for the guilty party. Instead, the purpose is to evaluate whether
a person can remain safely in our community without risking the safety of themselves and others around them throughout their trial process.
In NSW, the current bail laws dictate that individuals must ‘show cause’ and the court must consider ‘bail concerns’ to ultimately make a decision regarding bail. This step applies if the person arrested has been charged with a ‘show cause’ offence listed in the Bail Act 2013 s16B. This includes serious indictable offences or offences that would result in imprisonment for life. ‘Show cause’ means the person arrested and charged must explain why being held in a correctional facility throughout the trial process is unjustified and unfair. They are essentially ‘showing cause’ for their release. The courts will identify the seriousness of the crime and mitigating or aggravating factors such as whether the accused was already on bail or parole. If they did not commit a show cause offence, then the court will automatically begin to consider bail concerns. Otherwise, s21 states that there are special rules for offences which can result in right to release including; fine-only offences, certain offences under the Summary Offences Act 1988 that are not excluded, or the Young Offenders Act 1997 where children under 18 years of age are dealt with by conference.
‘Bail concerns’ refer to four primary questions that must be answered in s17 of the Act that are part of the ‘Unacceptable Risk Test’. These include whether:
1. the individual will attend court when they are required to
2. if they have committed a serious offence,
3. if they will endanger anyone in the community and
4. if the accused will interfere with witnesses or evidence.ometimes bail concerns may be rectified through the implementation of bail conditions such as reporting to a police officer daily or paying a certain amount of money. If these conditions are breached, the individual can have their bail revoked.
On the other hand, if there is a chance that the answer is no to any of those questions, it is regarded as an ‘unacceptable risk’ according to s19 of the Act. If the individual fails the risk assessment, they will ultimately be denied bail and instead kept in custody. This is the last step in the process of being granted bail.