Bail

The new bail Legislation

In the introduction you should mention briefly what bail is,
what the old rules were and explain why change was
necessary.
Relevant examples of Legislation, Cases, Media Documents
and International Instruments.

The legislation, known as the new Bail Act was introduced to the
NSW state parliament in May 2013. Bail is an accepted part of the
criminal justice system. It supports the rule of law by providing a
clear legal process for balancing the presumption of innocence with
the safety of the community when a person is arrested and charged.
The purpose of the Bail Act 2013 is to have regard to the
presumption of innocence and the general right to be at liberty. The
reason for why the Act was introduced was because the old Act, Bail
Act 1978 was unclear and the onus is placed on judges, whereas the
onus is now shifted to the defendant to show whether you can have
bail or not.

The Bail Act 2013 was amended by the Bail Amendment Bill 2014,
which introduced a new Division 1A where offences required an
accused to show cause why their detention was not justified. The
amendment also varied the unacceptable risk test so that the court
can decide whether or not to grant the accused bail. The Act was
further amended by the Bail Amendment Bill 2015 which was
assented on 5 November 2015, but is yet to be commenced. A new
test was introduced requiring that bail be refused unless it is
established that exceptional circumstances exist for applicant
charged with:
- An offence under s301J of the Crimes Act 1900 (membership
of a terrorist organization)
- Any other offence for which a custodial sentence may be
imposed, if the applicant has previously been charge with a
Commonwealth terrorism offence or an offence under 310J, or
is subjected to control order made under 5.3 Commonwealth
Crime Code (terrorism provisions.)

The new NSW bail laws introduced by the 2013 Act were aimed at
presenting a different test being applied in contrast to the
superseded Act. The test to be applied as it currently stands in the
2013 Act is whether there is an unacceptable risk. If there is then
the bail authority must decided whether there are any conditions
that can be imposed in order to mitigate such risk.

In determining whether there is an unacceptable risk, the bail

authority must decide, that if a person is released, will that person
(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. [S.17(2)]

The bail authority must consider a number of matters which are set
out in [s.17(3)(a) (l)]. Important considerations include:
- The persons background
- Criminal history
- The nature and seriousness of the offence
- The strength of the prosecution case and various other
considerations
- Other considerations:
o The length of time the accused is likely to spend in
custody if refused bail.
o Whether the accused has a history of violence
o Any special needs of the accused
o The need for the accused to be free to prepare their
case and obtain legal advice
o The need to be free for any lawful purpose such as
attending a drug and alcohol rehabilitation program in
house.

If there is no unacceptable risk, then the person has an entitlement

to bail. If there is an unacceptable risk, then the bail authority must
decide whether bail conditions can be imposed to migrate the
concern. If not, then bail must be refused.
Bail conditions to mitigate unacceptable risk
- Character acknowledgement
o An acceptable person must acknowledge he/she is
acquainted with the accused, regards him/her as a
responsible person, who is likely to comply with the bail
acknowledgement.
- Conduct requirement
o A requirement where the accused is to do or refrain from
doing something. (is applicable is the security
requirement is not required)
- Security requirement
o Money or equity deposited or offered to mitigate any
unacceptable risk that the accused will fail to appear.

The changes that occurred in the Act include,

- No more presumptions:
o To decide whether or not to grant bail involves making
certain presumptions based on the type of offence
committed.
o Offences that have a presumption in favour of bail mean
that people who have been charged with these offences
are to be granted bail unless there is a compelling
reason against it.
 o Offences with a presumption against bail mean that
alleged offenders must be refused bail unless there are
extenuating circumstances
o Under the new system, the presumption will be
removed, which means that those who have allegedly
committed offences that would normally have
automatically been refused bail could now be granted
bail.
- The unacceptable risk test
o The new amendments in late January 2015 the definition
of unacceptable risk has changed and a show cause
requirement has been added.
o A show cause offence is introduced by the 28 January
2015 amendments to the Bail Act. S.16B of the Bail Act
sts out a number of offences where an accused, over the
age of 18, charged under one of these offences will need
to show cause as to why detention is not justified.
o If applicant is able to show cause, then the issue of
unacceptable risk is considered in the same way as bail
application. If the applicant cannot show cause, then
bail should be refused.

Legislation: Bail Act 2013 (NSW)

Case: The Lindt Caf Case
This case is commonly known as the Sydney Siege
Occurred at 15-16 December 2014
Man Haron Monis held hostage of 10 customers and 8
employees located at Martin Place in Sydney Australia.
The siege led to a 16-hour standoff, after which a gunshot was
heard from inside and police officers stormed in the caf.
Hostage Tori Johnson was killed by Monis and hostage Katrina
Dawson was killed by a police bullet ricochet in the
subsequent raid.
Monis was also killed
Three other hostages and a police officer were injured by
police gunfire during the raid.
Man Haron Monis
o 12 December, 3 days before the siege, Monis lost his
appeal against his conviction and was sentenced to 200
hours community service
o Charged with accessory to murder relating to the death
of his former wife.
o 12 December 2013, Magistrate William Pierce said it is
a weak case and granted Monis bail
o Monis also has numerous charges of sexual assaults,
aggravated indecent assault, and common assault.
o 14 April 2014, Monis was charged with three sexual
assault offences against women and remanded in
 custody. He was granted bail on 26th May, six days after
the Bail Act in NSW was rewritten based on the
recommendations by the NSW LRC.
o On 10 October, he was charged with another 40 sexual
offences against six more women, and his bail was
continued.
After the Sydney siege there was a big inquiry into why Monis had
bee ranted bail and why the new bail system had failed. The bail
was amended again in 2015. The main change was in response to
Man Moniss attack, and it says that now the bail act imposes a
limitation to be released regarding terrorism-related offences
(s22A). Additionally, under the 2015 amendment the accused
person must show why his/her detention is not justified. (s16A)

Schedul2 2: Amendment of Bail Act 2013 no.26 in response

to Martin Place Siege review.

Media: Sydney Morning Herald