Bail Amendment Act 2014 No 52

An Act to amend the Bail Act 2013 to make further provision for bail decisions.

1 Name of Act

This Act is the Bail Amendment Act 2014.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

Schedule 1 Amendment of Bail Act 2013 No 26

[1] Preamble

Insert after the long title:

  

Preamble

The Parliament of New South Wales, in enacting this Act, has regard to the following:

(a)  the need to ensure the safety of victims of crime, individuals and the community,

(b)  the need to ensure the integrity of the justice system,

(c)  the common law presumption of innocence and the general right to be at liberty.

[2] Section 3 Purpose of Act

Omit section 3 (2).

[3] Section 4 Definitions

Insert in alphabetical order in section 4 (1):

  

bail concern—see section 17.

show cause offence—see section 16B.

victim of an offence includes an alleged victim of an offence.

[4] Section 4 (1), definition of “unacceptable risk”

Omit “section 17”. Insert instead “section 19”.

[5] Section 16

Omit the section. Insert instead:

  

16 Flow charts—key features of bail decisions

(1)  The flow charts illustrate the key features of bail decisions under this Act.

(2)  Flow Chart 1 illustrates the show cause requirement (set out in Division 1A), which applies only to show cause offences.

(3)  Flow Chart 2 illustrates the unacceptable risk test (set out in Division 2) as it applies to all offences, other than offences for which there is a right to release.

(4)  In the flow charts:

conditional release means a decision to grant bail with the imposition of bail conditions.

unconditional release means a decision:

(a)  to release a person without bail, or

(b)  to dispense with bail, or

(c)  to grant bail without the imposition of bail conditions.

Flow Chart 1 Show cause requirement

Flow Chart 2 Unacceptable risk test

[6] Part 3, Division 1A

Insert after Division 1:

  

Division 1A Show cause requirement

16A Accused person to show cause for certain serious offences

(1)  A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

(2)  If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test—all offences).

(3)  This section does not apply if the accused person was under the age of 18 years at the time of the offence.

16B Offences to which the show cause requirement applies

(1)  For the purposes of this Act, each of the following offences is a show cause offence:

(a)  an offence that is punishable by imprisonment for life,

(b)  a serious indictable offence that involves:

(i)  sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or

(ii)  the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years,

(c)  a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence,

(d)  any of the following offences:

(i)  a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a firearm,

(ii)  an indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place,

(iii)  a serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying or manufacturing a pistol or prohibited firearm,

(e)  any of the following offences:

(i)  a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a military-style weapon,

(ii)  an indictable offence that involves the unlawful possession of a military-style weapon,

(iii)  a serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon,

(f)  an offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act,

(g)  an offence under Part 9.1 of the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code,

(h)  a serious indictable offence that is committed by an accused person:

(i)  while on bail, or

(ii)  while on parole,

(i)  an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order,

(j)  a serious indictable offence of attempting to commit an offence mentioned elsewhere in this section,

(k)  a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section.

(2)  In this section, a reference to the facts or circumstances of an offence includes a reference to the alleged facts or circumstances of an offence.

(3)  In this section:

firearm, prohibited firearm and pistol, and use, acquire, supply or possession of a firearm, have the same meanings as in the Firearms Act 1996.

prohibited weapon and military-style weapon, and use, buy, sell, manufacture or possession of a prohibited weapon, have the same meanings as in the Weapons Prohibition Act 1998.

serious indictable offence has the same meaning as in the Crimes Act 1900.

serious personal violence offence means an offence under Part 3 of the Crimes Act 1900 that is punishable by imprisonment for a term of 14 years or more.

supervision order means an extended supervision order or an interim supervision order under the Crimes (High Risk Offenders) Act 2006.

[7] Part 3, Division 2, heading

Omit the heading. Insert instead:

  

Division 2 Unacceptable risk test—all offences

[8] Sections 17–20A

Omit sections 17–20. Insert instead:

  

17 Assessment of bail concerns

(1)  A bail authority must, before making a bail decision, assess any bail concerns.

(2)  For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will:

(a)  fail to appear at any proceedings for the offence, or

(b)  commit a serious offence, or

(c)  endanger the safety of victims, individuals or the community, or

(d)  interfere with witnesses or evidence.

(3)  If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision.

(4)  This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement).

18 Matters to be considered as part of assessment

(1)  A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division:

(a)  the accused person’s background, including criminal history, circumstances and community ties,

(b)  the nature and seriousness of the offence,

(c)  the strength of the prosecution case,

(d)  whether the accused person has a history of violence,

(e)  whether the accused person has previously committed a serious offence while on bail,

(f)  whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,

(g)  whether the accused person has any criminal associations,

(h)  the length of time the accused person is likely to spend in custody if bail is refused,

(i)  the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(j)  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,

(k)  any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,

(l)  the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,

(m)  the need for the accused person to be free for any other lawful reason,

(n)  the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,

(o)  in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,

(p)  the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.

(2)  The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered:

(a)  whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900,

(b)  the likely effect of the offence on any victim and on the community generally,

(c)  the number of offences likely to be committed or for which the person has been granted bail or released on parole.

19 Refusal of bail—unacceptable risk

(1)  A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk.

(2)  For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will:

(a)  fail to appear at any proceedings for the offence, or

(b)  commit a serious offence, or

(c)  endanger the safety of victims, individuals or the community, or

(d)  interfere with witnesses or evidence.

(3)  If the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.

(4)  Bail cannot be refused for an offence for which there is a right to release under Division 2A.

20 Accused person to be released if no unacceptable risks

(1)  If there are no unacceptable risks, the bail authority must:

(a)  grant bail (with or without the imposition of bail conditions), or

(b)  release the person without bail, or

(c)  dispense with bail.

(2)  This section is subject to Divisions 1A and 2A.

20A Imposition of bail conditions

(1)  Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns.

(2)  A bail authority may impose a bail condition only if the bail authority is satisfied that:

(a)  the bail condition is reasonably necessary to address a bail concern, and

(b)  the bail condition is reasonable and proportionate to the offence for which bail is granted, and

(c)  the bail condition is appropriate to the bail concern in relation to which it is imposed, and

(d)  the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and

(e)  it is reasonably practicable for the accused person to comply with the bail condition, and

(f)  there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

(3)  This section does not limit a power of a court to impose enforcement conditions.

Note—

Enforcement conditions are imposed for the purpose of monitoring or enforcing compliance with other bail conditions. Section 30 provides for this type of bail condition.

Division 2A Special rules for certain offences

[9] Section 21 Special rule for offences for which there is a right to release

Insert after section 21 (4):

  

(5)  Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision for an offence for which there is a right to release.

[10] Section 22 General limitation on court’s power to release

Insert at the end of the section:

  

(2)  If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified.

(3)  Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision made by a court under this section.

[11] Section 23 When bail conditions can be imposed

Omit section 23 (1).

[12] Section 24 General rules for bail conditions

Omit the section.

[13] Section 26 Bail conditions can require security to be provided

Omit “mitigating an unacceptable risk” from section 26 (5).

Insert instead “addressing a bail concern”.

[14] Section 38 Reasons for decision to be recorded

Omit “including the unacceptable risk or risks identified” from section 38 (1).

Insert instead “including (if bail was refused because of an unacceptable risk) the unacceptable risk or risks identified”.

[15] Section 38 (2) (b)

Omit “unacceptable risk or risks”. Insert instead “bail concern or concerns”.

[16] Section 47 Review of police decision by senior police officer

Omit section 47 (2). Insert instead:

  

(2)  A senior police officer must carry out a review, at the request of the accused person, if:

(a)  bail was refused, or

(b)  bail was granted subject to a pre-release requirement and the accused person cannot comply with the pre-release requirement.

[17] Section 47 (5)

Omit “person the subject of the bail decision”. Insert instead “accused person”.

[18] Section 47 (8)

Insert after section 47 (7):

  

(8)  If there is no senior police officer available at a police station to carry out a review under this section, the review may be carried out by any other police officer who would be a senior police officer if he or she were present at the police station.

[19] Section 53 Discretion to make or vary bail decision without bail application

Insert after section 53 (3):

  

(4)  This section does not permit the grant of bail, without a bail application, for a show cause offence.

[20] Section 74 Multiple release or detention applications to same court not permitted

Insert “material” before “information” wherever occurring in section 74 (3) (b) and (4) (a).

[21] Schedule 3 Savings, transitional and other provisions

Insert “, 18” after “17” in clause 7.

[22] Schedule 3, clause 9

Insert at the end of the clause:

  

(2)  The enactment of this Act is not a change in circumstances for the purposes of section 74 (3) (c) or (4) (b).

[23] Schedule 3, Part 3

Insert after Part 2:

  

Part 3 Provisions consequent on enactment of Bail Amendment Act 2014

12 Application of amendments

An amendment made to this Act by the Bail Amendment Act 2014 extends to offences committed or alleged to have been committed, or charged, before the commencement of the amendment.

13 Amendments do not constitute change in circumstances

An amendment made to this Act by the Bail Amendment Act 2014 is not a change in circumstances for the purposes of section 74 (3) (c) or (4) (b).