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Report 133: Bail, 8 April 2012 + New South Wales Law Reform Commission Report 133 Bail April 2012 www.lawlink.nsw.gov.au/lrc Report 133 Bail © New South Wales Law Reform Commission, Sydney, 2012 Copyright permissions This publication may be copied, distributed, displayed, downloaded and otherwise freely dealt with for any personal or non-commercial purpose, on condition that proper acknowledgment is included on all uses. However, you must obtain permission from the NSW Law Reform Commission if you wish to: charge others for access to the publication (other than at cost); include all or part of the publication in advertising or a product for sale; or modify the publication. Disclaimer While this publication has been formulated with due care, the NSW Law Reform Commission does not warrant or represent that it is free from errors or omission, or that it is exhaustive. This publication deals with the law at the time it was first published and may not necessarily represent the current law. Readers are responsible for making their own assessment of this publication and should verify all relevant representations, statements and information with their own professional advisers. Other publication formats The NSW Law Reform Commission is committed to meeting fully its obligations under State and Commonwealth anti-discrimination legislation to ensure that people with disabilities have full and equal access to our services. This publication is available in alternative formats. If you require assistance, please contact the Commission (details on back cover). Cataloguing-in-publication Cataloguing-in-publication data is available from the National Library of Australia. ISSN 1030 0244 ISBN 978-0-7347-2659-9 ii NSW Law Reform Commission The Hon G Smith SC MP Attorney General for New South Wales Level 31, Governor Macquarie Tower 1 Farrer Place SYDNEY NSW 2000 Dear Attorney Bail We make this report pursuant to the reference to this Commission received 8 June 2011. The Hon James Wood AO QC Chairperson April 2012 NSW Law Reform Commission iii Report 133 Bail iv NSW Law Reform Commission Table of contents Table of contents............................................................................................................................v Participants .................................................................................................................................. xiii Terms of reference .......................................................................................................................xv Executive Summary ................................................................................................................... xvii Recommendations .................................................................................................................... xxxi 1. Introduction to the bail review ...............................................................................................1 Previous reviews .....................................................................................................................2 Our review ...............................................................................................................................2 Our process .............................................................................................................................3 The scope of our report ..........................................................................................................5 2. Bail and the criminal justice system .....................................................................................7 The structure and purposes of the criminal justice system ................................................7 The purposes of an effective criminal justice system .............................................................8 Principles that protect liberty and fairness in the criminal justice system ........................9 Personal freedom and liberty: “the most elementary and important of all common law rights” .................................................................................................10 The presumption of innocence ............................................................................................11 No detention without legal cause .........................................................................................11 No punishment without conviction by due process, and limitations on preventative detention .................................................................................................12 The right to a fair trial ...........................................................................................................12 Individualised justice and consistency .................................................................................13 Special provision for young people ......................................................................................14 Framing bail legislation in response to the objectives and principles of the criminal justice system ....................................................................................................................15 3. The history of bail law in New South Wales........................................................................19 The early history of bail in England .....................................................................................19 Pre Bail Act common law in NSW ........................................................................................21 Pressure for reform: the remand and poverty connection ....................................................24 Codification and reform: the Bail Act 1978 (NSW) .............................................................25 The Report of the Bail Review Committee (1976) ...............................................................25 The Bail Act 1978 ................................................................................................................28 Frequent amendments, 1978-2011 .....................................................................................29 Amendments relating to presumptions ..............................................................................30 The original 1978 Act: the starting point ..............................................................................30 1986 to 2001: a period of incremental change.....................................................................31 2002 to 2004: a period of significant change .......................................................................35 2004 to date: further presumptions against bail ...................................................................38 The cumulative effect of the amendments relating to presumptions ....................................40 Conclusion ............................................................................................................................42 NSW Law Reform Commission v Report 133 Bail 4. Trends in remand ................................................................................................................. 45 Introduction .......................................................................................................................... 45 Adults: Increasing remand numbers and rates ................................................................. 46 Comparison with other jurisdictions .................................................................................... 49 The drivers of increasing remand rates ............................................................................. 50 Bail refused ......................................................................................................................... 50 Time spent on remand ........................................................................................................ 51 Bail conditions: arrest and revocation ................................................................................. 54 The special situation of young people ............................................................................... 55 Increased numbers and rates of young people in remand .................................................. 55 Young people and the risk of reoffending ........................................................................... 58 Bail conditions .................................................................................................................... 59 Indigenous defendants ........................................................................................................ 59 High remand rates .............................................................................................................. 59 Bail refusal .......................................................................................................................... 60 Time on remand ................................................................................................................. 62 Young people ..................................................................................................................... 62 A disproportionate impact ................................................................................................... 62 Conclusion ............................................................................................................................ 62 5. Consequences of remand ................................................................................................... 65 Introduction .........................................................................................................................
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