Bail is the authority for a person accused of and charged with a crime to be at liberty while awaiting trial.
A bail decision is made by the NSW Police or a judge of the Local, District or Supreme Court in NSW.
A bail decision leads to bail being:
grantedThe accused is at liberty while they await trial.
refusedThe accused is held on remand while they await trial.
Maintaining the presumption of innocence, the safety of the community and the effectiveness of the criminal law is very important in ensuring fairness, consistency and equality before the law.
The presumption of innocence ensures that people are not punished without being found guilty of a crime and is an important check on the power of government because it limits the government's ability to punish and imprison people.
The burden of proof in the criminal trial process is on the prosecution, which means that a person must be proven guilty, and that they are not required to prove they are innocent.
The presumption of innocence is not absolute. The bail process ensures that the presumption of innocence is maintained, but also deals with other important considerations such as the:
the idea that the criminal justice system will enforce the law without fear or favour, and will do so according to the law. This means that a person who is accused of a crime must face trial to answer the charges brought against them.
the idea that the law should protect the community from harm.
Judges and magistrates in the Local, District and Supreme Courts have the power to make bail decisions.
The Court of Criminal Appeal may also make bail decisions, but only after it has been considered by a lower court. The Bail Act requires that all courts must hear each bail decision de novo. This means that the court which hears a bail application will consider it from the start, and not review the correctness of any subsequent bail decision.
A bail decision originally heard in the Local or District Court can be heard again by the Supreme Court, and the Court of Criminal Appeal could again hear a bail decision heard by any lower court. Both the accused and the prosecution may apply to a higher court to consider a bail decision.
The Show Cause Test
Show cause was added to the Bail Act 2013 in late 2014. An accused is required to show cause only if they are charged with certain serious offences. No person under the age of 18 is required to show cause.
To show cause, the accused must argue why their detention is not justified. To make a decision about whether the accused has shown cause, the judge may consider (see s31 Bail Act 2013) any evidence or information so long as it is trustworthy and credible. The standard of proof used for making a determination of show cause is on the balance of probabilities (s32).
The accused will either:
show causeThe accused must now satisfy the unacceptable risk test
fail to show causeBail is refused and the accused is held on remand.
Bail Concerns & Unacceptable Risk
Unacceptable risk requires the judge to assess four bail concerns with reference to a number of specific matters contained in s18 of the Bail Act.
The purpose of bail is to provide a legal process to makes a decision about whether a person poses an unacceptable risk in terms of bail concerns. An accused who poses an unacceptable risk in relation to any of the four bail concerns found in the Bail Act will be refused bail.
Section 17 of the Bail Act 2013 (NSW) defines what is meant by bail concerns:
That the accused may:
...if they are released on bail.
Bail concerns must be considered with reference to the following matters in s18 of the Bail Act:
If bail concerns are identified and they can be remedied by "bail conditions" (ss23-30) such as:
What kinds of bail conditions can be set?
requires the accused to do or not do anything.
providing a sum of money to the bail authority which is forfeit if bail is broken
people who know the accused who provide assurances that the person will comply with their bail conditions
requires the accused to have certain arrangements in place for accommodation before they can be released on bail
the surrendering of the accused passport, or other requirements that must be met before the accused can be released
an example of this would be requiring the person to refrain from consuming alcohol and submitting to drug testing while on bail
The judge will exercise discretion in terms of the bail conditions which are set, and will hear arguments from the accused and prosecution about them. The accused or their lawyer can offer to follow certain bail conditions and will argue that these address any bail concerns. The prosecution may argue in response that certain conditions will not address bail concerns.
bail conditions address bail concernsThe accused is released on conditional bail.
If the conditions are breached bail will be revoked.
DO NOT address
The accused can appeal to a higher court, or in certain circumstances may reapply for bail (see s74).
Law Reform & Bail Decisions
The Bail Act in NSW has undergone significant law reform in recent years.
The 1978 Bail Act had become complex because of the many changes to it over its life. The NSW Law Reform Commission conducted a comprehensive review of bail and delivered its findings in April 2012.
The cumulative effect of thirty years of amendments since the enactment of the reform oriented Bail Act 1978 (NSW) is a level of complexity in the legislation which makes it difficult to comprehend and operate, even for those with legal expertise working with it daily.
The adding of multiple presumptions against bail led to an increase in the remand population:
...the number of people in unsentenced detention has increased rapidly in the last 20 years, and is significantly higher than in comparable Australian jurisdictions. In particular, the rates of unsentenced detention for Indigenous people and young people are of concern.
...this increase in remand rates appears to have resulted in a reduction in failure to appear. Such evidence as there is does not suggest an effect in reducing crime.
To attempt to reduce the cost of holding people on remand ($276 per day for adults, $589 for young persons) could be better spent on justice reinvestment:
CSNSW [Corrective Services NSW] advise that “remand inmates are some of the most resource intensive inmates in the correctional system…because, despite many being in custody for only a few days, remand inmates require screening, intense monitoring, escorts, and security around family and legal visits”.
A key issue identified by the Attorney-General, Greg Smith SC, during the Second Reading Speech for the Bail Act 2013 was the complexity of the old Act, and that the new Bail Act 2013 would:
...result in decisions that better achieve the goals of protection of the community while appropriately safeguarding the rights of the accused person
Why was the Bail Act 2013 changed so soon?
A new Act was passed in 2013. Further changes to the Bail Act 2013 (NSW) were made only 4 months after it commenced operation in May 2014 due to concerns about a number of bail decisions.
Bail decisions in the Hawi and Fesus matters were significant in prompting the NSW Government to change the newly introduced Bail Act 2013 (NSW) by introducing the show cause test.
These cases led to a review of the Bail Act 2013 by former NSW Attorney General John Hazistergos.
The NSW government accepted the Hatzistergos Review's recommendations and amended the Bail Act 2013 in November 2014.
Rule of Law Concerns with Changes to the Bail Act
Changes to the Bail Act in 2014 raised significant rule of law concerns.
- removing the presumption of innocence and general right to liberty from s3 of the Act and putting it in the Preamble where it has no legal force. Protecting the safety of the community was emphasised, more so than the presumption of innocence.
The strikethrough text below shows the part removed from the Bail Act 2013:
Purpose of Act
- The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions.
A bail authority that makes a bail decision under this Act is to have regard to the presumption of innocence and the general right to be at liberty.
- the show cause test places the onus on the accused to show why they should not be detained. This departs from the norm in criminal law where the prosecution carries the burden of proof.
Criticisms from Legal Organisations and AcademicsA number of legal organisations and academics highlighted issues with the changes to the Bail Act:
- the changes had come too soon after the introduction of the Bail Act 2013, and that only several months of operation did not allow enough time to demonstrate whether it was effective;
- the bail decisions which prompted change to the law were "edge cases" that were not necessarily representative of the majority of bail decisions in NSW;
- the legal community felt that the government had caved to pressure from the media and made a decision to appease media commentators and appear tough on crime;
- the media portrayal of courts and judges as "soft on crime" and out of touch with community expectations was unfair, given that they were applying the law as it was written by the Parliament;
- the government gave no consideration to the already existing checks and balances, which allow both the defence and prosecution to have bail decisions reviewed by a higher court.
This new law appears to be in response to a small number of individual bail decisions which were met with criticism from the media. This style of law-making increases the risk of unintended consequences in the system. Ms Everett said that of particular concern is the new bail test for serious offences requiring defendants to "show cause" in establishing why their detention is not justified. "Apart from being premature and unsupported by empirical evidence, this new test goes too far in undermining the presumption of innocence which must remain a fundamental principle of our criminal justice system.
"The changes represent a premature and reactive approach to criticisms in some sections of the media, rather than taking into account the thorough and thoughtful process by the NSW Law Reform Commission which led to the new Bail Act. The NSW Law Reform Commission was assisted in its important work by experienced stake holders such as the NSW Police Force, the NSW DPP, the NSW Department of Corrective Services and the NSW Public Defenders. Individual cases do not paint the overall picture of bail decisions in New South Wales or whether the current Bail Act is effective
These changes will have the effect of dealing with all crimes in certain categories in the same way, irrespective of the facts of the case. For instance, a wife who loses control and kills her husband after decades of violent abuse will be subject to the same just cause test as a member of a crime gang who kills a rival gang member in cold blood over a drug deal gone wrong"
Since the late 1980s, state governments have used the bail regime for political purposes, specifically to send a “tough on crime” message. Since 1988, more than 20 changes to bail laws created an ever-growing list of offences for which there was a presumption against bail. The list included those accused of murder, armed robbery, certain drug offences, firearms offences, terrorism, repeat property offenders and aggravated sexual assault.
A common thread here is the demonising of particular types of alleged offenders whose crimes evoked popular anxiety and anger.
These changes produced a staggering rise in the prison population. About a quarter of the state’s prisoners are on remand - that is, where bail is refused.
Rule of Law requires the presumption of innocence to be maintained and that bail is not used as punishment.
This shift in the purpose of the Bail Act in 2014 and 2015 raises discussion about the balance struck between the presumption of innocence and the safety of the community. In many ways this balance reflects the recognition of the rights of the community (including victims) and the accused have in the criminal justice system in NSW.
Bail should never be used or seen as a form of preemptive punishment. The reform of the bail act suggests that the NSW Government may be losing sight of the importance of the presumption of innocence, as well as repeating mistakes which led to review of the Bail Act 1975 (NSW).
Potential Issues for an Accused
An accused who is denied bail is still entitled to the presumption of innocence. Issues of unfairness from the perspective of the accused who is held on remand may be:
- they may spend more time on remand than the maximum penalty for the crime they are charged with or the sentence they receive if found guilty;
- they may spend a significant amount of time (months or years) on remand and may be found not guilty;
The Remand Population in NSW Prisons
Legal experts have feared that the introduction of the show cause test would lead to an increase in the remand population in NSW, however, Bureau of Crime Statistics and Research (BOCSAR) data shows that while there has been a 5% increase in the number of defendants refused bail (held on remand) since May 2014 that:
"There's no doubt that a lot of people think the bail act is responsible for the growth in the number of people on remand, ... But the fact of the matter is [the laws have] made a small contribution."
Interestingly, BOCSAR attributes the increase in NSW's remand population between 2011 and 2015 from 10,000 to 11,801 to other factors such as:
- delays in courts hearing cases and sentencing offenders
- NSW Police arresting more people who breach their bail conditions
Delays in the courts and a growing remand population are a significant economic and ethical problem for the NSW Government. It is in the interests of the rule of law for trials to be conducted speedily, especially for those held on remand.
Assuming the Accused is Guilty or Worthy of Punishment
For the criminal justice system to provide equality before the law the judge making a bail decision cannot make the assumption that an accused is guilty or worthy of imprisonment because they have a:
- reputation for being involved with crime,
- have a criminal record; or
- are charged with a serious crime
The idea that a person accused of a crime should be punished because they are charged with a serious crime, or because they have a certain criminal background is in direct opposition to the presumption of innocence and the way in which the criminal law determines guilt.
A number of media commentators seem to be ignorant of the fact that bail is not a punishment and expect judges to make decisions which accord with public opinion. This is not how criminal law works - bail decisions are made according to the law set by the Parliament, not at the whim of public opinion. Judges use their discretion to make bail decisions and must consider a range of factors including the safety of the community in doing so. The ability to appeal a bail decision to a higher court is an effective way of ensuring the law is being applied correctly.