Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 25/1997 by Rachel Simpson
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- Bail in one form or another has been a part of the common law
since Anglo-Saxon times. The modern system of bail developed as a result of
provisions in the Statute of Westminster I, in 1275, which prescribed
for the first time a number of categories of persons who were not to be bailed,
and another list of persons who were not to be refused bail. This system is not
so different from the scheme contained within the Bail Act 1978 (NSW)
which commenced operation on 20 March 1980. A more thorough history of bail is
contained in Part 2, and a history of the NSW Bail Act can be found in
part 4.2.
- New South Wales has the largest remand population in Australia
- there were a total of 941 remand prisoners in NSW facilities on 1 May 1997.
This represented 15.1% of the full time population in NSW prisons. In terms of
numbers per 100,000 adult population the Northern Territory had the highest
rate - 77.6 per 100,000 adult population, and Tasmania had the lowest rate -
9.0 per 100,000 adult population.
- Bail is the granting of temporary liberty to a person charged
with a criminal offence. It may be granted by the police or by a court. The
rules applying to police and court bail are essentially the same. The operation
of the Bail Act is examined in Part 4. The Bail Act implements a
four-tiered regime of eligibility for bail. For those offences categorised as
minor (generally, an offence that is not punishable by imprisonment) there is a
right to release on bail, except in a number of exceptional circumstances. If
the offence is categorised as non-violent, there is a presumption in favour of
bail for the accused. The presumption may be rebutted if the prosecution can
demonstrate that bail should not be granted. Certain offences which could be
classified as violent do not enjoy the presumption in favour of bail. These
offences include murder, aggravated robbery and domestic violence offences. In
these cases the accused must prove to the court why bail should be granted. The
final category relates to certain serious drug offences. In these cases, there
is a presumption against bail being granted. Again, if the accused can prove to
the court why bail should be granted, the presumption does not preclude the
granting of bail. The Bail Act establishes very clearly the criteria
which must be considered in any bail application. The criteria fall into four
main categories: the likelihood of the accused appearing in court if bail is
granted; the interest of the accused; the protection of the alleged victim, and
the protection and welfare of the community. Only those considerations laid
down in the Act can be considered in a bail application.
- Bail may have conditions attached to it, or may be
unconditional. Unless necessary to promote law enforcement or protect the
victim or community generally, bail is to be unconditional. If bail conditions
are necessary, no more stringent conditions are to be imposed than the offence
and the circumstances of the accused warrant. Financial conditions are to be
imposed only if no other condition is appropriate. Conditions may be imposed on
the accused personally, or may involve a third person or persons, known
traditionally as a surety, but termed an acceptable person in the Bail
Act. If a person fails to comply with a bail condition, or fails to appear
in accordance with bail undertakings, he or she may have committed an offence
against the Bail Act. These offences are outlined in Part 4.4. Reasons
for imposing conditions are to be written down in accordance with the Bail
Regulations, and may be the subject of an appeal, as may the bail decision
itself. The review mechanisms are examined in Part 4.5.
- When examining a system of bail, there are a number of
important considerations to bear in mind. Foremost among these is the
preservation of the presumption of innocence, which is a fundamental premise
upon which our legal system rests. However, the interests of the victims of
violent personal crime and those of the community in bringing the accused to
trial are also important and must not be overlooked. The size of the remand
population and conditions on remand are also relevant, particularly in light of
the lengthy delays in hearing cases that some accused may face. Tables 5(a) and
5(b) illustrate the possible delays. The average length of time from arrest to
determination in the Local Court in 1996 was 126 days for those on bail and 72
days for those on remand. In the higher courts, the time was even longer: 505
days from arrest to sentence for those on bail and 301 days was the average
time for those on remand. It is also important to give special consideration to
the interests of juveniles, who are particularly affected by being on remand.
These considerations are canvassed briefly in Part 5.
