Bail

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 as to 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)]
If there is no unacceptable risk, then the person has an entitlement to bail.

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
such as the accused prior history and the accessibility to legal
representation.
Bail conditions to mitigate unacceptable risk are:
- Character acknowledgement
- Conduct requirement
- Security requirement

The changes that occurred in the Bail Act 2013 include,

- No more presumptions:
o To decide whether or not to grant bail is based on the type of
offence committed.
o Offences that have a presumption mean that people 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 Matters relevant to the applicants history of compliance or non-
compliance.
o The likelihood of a custodial penalty if the applicant has been
convicted but not yet sentenced
o Whether the applicant has any associations with a terrorist
organisation, or made statements or carried out activities
advocating support for terrorist acts or violent extremism, or has
any associations or affiliation with any person or groups
advocating such support.

Lindt Caf case

This case is commonly known as the Sydney Siege. Man Haron Monis held 18
hostages at Martin Place in Sydney Australia. This case clearly demonstrates the
failure of achieving justice in the Bail Act. As before this siege had occurred,
Monis was convicted of numerous of sexual assaults, aggravated indecent
assault, and common assaults, and he was granted bail.

Jill Meagher Case

The Jill Meagher case also failed in achieving justice, due to the fact that the
defendant, Adrian Bailey has 17 prior convictions of rape and was granted bail
after so many convictions, but it finally stopped here. He was sentenced to life
imprisonment after he raped and murdered Jill.