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NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE Bail Law and Practice: Recent Developments by Rowena Johns Briefing Paper No 15/02 RELATED PUBLICATIONS · Bail in New South Wales by Rachel Simpson, NSW Parliamentary Library Briefing Paper No 25/97 ISSN 1325-5142 ISBN 0 7313 1721 1 December 2002 © 2002 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent from the Librarian, New South Wales Parliamentary Library, other than by Members of the New South Wales Parliament in the course of their official duties. NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE David Clune (MA, PhD, Dip Lib), Manager................................................(02) 9230 2484 Gareth Griffith (BSc (Econ) (Hons), LLB (Hons), PhD), Senior Research Officer, Politics and Government / Law................................(02) 9230 2356 Talina Drabsch (BA, LLB(Hons)), Research Officer, Law ..........................(02) 9230 2768 Rowena Johns (BA (Hons), LLB), Research Officer, Law...........................(02) 9230 2003 Roza Lozusic (BA, LLB), Research Officer, Law ........................................(02) 9230 3085 Stewart Smith (BSc (Hons), MELGL), Research Officer, Environment ........(02) 9230 2798 John Wilkinson (BA (Hons), MA), Research Officer, Economics................(02) 9230 2006 Should Members or their staff require further information about this publication please contact the author. Information about Research Publications can be found on the Internet at: www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications 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. CONTENTS EXECUTIVE SUMMARY 1. INTRODUCTION....................................................................................................... 1 2. INTERPRETATION OF THE BAIL ACT 1978....................................................... 4 2.1 Introductory concepts................................................................................................... 4 2.2 Categories of offences................................................................................................... 7 2.3 Factors in considering whether to grant bail.................................................................. 10 2.4 Bail conditions ............................................................................................................ 12 2.5 Breach of bail ............................................................................................................. 15 2.6 Review of bail decisions .............................................................................................. 15 3. SUMMARY OF BAIL DEVELOPMENTS: 1978-2002......................................... 17 4. BAIL AMENDMENTS IN 2002 TO TARGET REPEAT OFFENDERS............. 28 4.1 Development of the Bail Amendment (Repeat Offenders) Bill....................................... 28 4.2 Provisions of the Bail Amendment (Repeat Offenders) Act 2002.................................. 35 4.3 Impact of the repeat offender amendments on imprisonment rates................................. 38 4.4 Responses to the reforms ............................................................................................ 41 5. NEW BAIL PROVISIONS ON INTERVENTION PROGRAMS........................ 44 5.1 Introduction to the amendments................................................................................... 44 5.2 Formal recognition of rehabilitation programs............................................................... 45 5.3 Basic principles of intervention programs - amendments to the Criminal Procedure Act 1986 ................................................................................................................................ 46 5.4 Amendments to the Crimes (Sentencing Procedure) Act 1999 ..................................... 46 5.5 Amendments to the Bail Act 1978............................................................................... 47 6. MAGISTRATES EARLY REFERRAL INTO TREATMENT PROGRAM ....... 49 7. BAIL SCHEMES IN CABRAMATTA.................................................................... 54 7.1 Development of the Cabramatta Anti-Drug Strategy .................................................... 54 7.2 Police Drug Bail Scheme............................................................................................. 55 7.3 Cabramatta MERIT Program...................................................................................... 55 8. BAIL HOSTELS........................................................................................................ 57 8.1 General principles ....................................................................................................... 57 8.2 Bail accommodation in New South Wales ................................................................... 58 8.3 Bail hostels in Western Australia.................................................................................. 59 8.4 Bail hostels in the United Kingdom.............................................................................. 60 9. BAIL INFORMATION SCHEMES ........................................................................ 64 9.1 General principles ....................................................................................................... 64 9.2 Features of BISs in the United Kingdom...................................................................... 64 10. CONCLUSIONS...................................................................................................... 68 Bail Law and Practice: Recent Developments EXECUTIVE SUMMARY This briefing paper gives a general overview of bail legislation and procedure in New South Wales as a basis for a more detailed discussion of statutory amendments introduced in recent years. The other major area explored is the increasing emphasis on participation in diversionary and rehabilitation programs as a condition of release on bail. Interpretation of the Bail Act 1978 (pages 4-16) The operation of bail in New South Wales is governed by the Bail Act 1978. Bail becomes an issue when a person is charged by the police with a criminal offence. The accused may be released on bail by an authorised police officer or at a court appearance. The Local, District and Supreme Courts all have the power to grant bail. Under the Act, the availability of bail is divided into categories: a general entitlement to bail for minor offences under section 8(1); a presumption against bail for serious drug offences involving commercial quantities (s 8A); and a presumption in favour of bail for the remainder of crimes, except where the presumption has been specifically removed, such as for murder, manslaughter, serious sexual and drug offences, armed robbery, firearm offences, domestic violence, and for certain categories of repeat offenders (ss 9, 9A, 9B). In determining whether or not to grant bail for an offence which does not carry an entitlement to bail, four criteria shall be considered by the court or police: the probability of whether the accused will appear in court; the interests of the accused; the protection of victims and relatives; and the protection and welfare of the community: s 32. The conditions that may be imposed on the grant of bail are specified in ss 36-37, including restrictions upon conduct, attendance at a rehabilitation program, or an acceptable person agreeing to forfeit an amount of money if the accused fails to comply with the bail undertaking. The rest of the Bail Act 1978 deals with the enforcement of bail agreements and the powers for reviewing bail decisions. Summary of bail developments: 1978-2002 (pages 17-27) The Bail Act 1978 introduced a broad presumption in favour of bail, although from the outset it nominated some exceptions such as armed robbery. Over time the exceptions proliferated, removing the presumption in favour of bail for certain domestic violence offenders in 1987, murder in 1993, manslaughter and a range of sexual crimes in 1998, possession of prohibited firearms in 2001, and so on. A presumption against bail was imposed in 1988 upon certain drug offences involving commercial quantities. There have also been substantial procedural amendments, such as the Bail (Amendment) Act 1987 which stipulated that the Court of Criminal Appeal shall not grant bail pending an appeal against sentence or conviction passed in the District or Supreme Courts, unless special or exceptional circumstances exist. Recently, bail conditions have become more explicit in identifying the types of restraints that may be imposed on an applicant’s conduct. This was the effect of the Bail Amendment (Confiscation of Passports) Act 2002 and the Justice Legislation Amendment (Non-association and Place Restriction) Act 2001. Some amendments have endeavoured to make the bail process fairer for applicants, victims or other affected parties. For example, the Bail (Amendment) Act 1988 expanded the criteria under s 32 for determining bail, to require the police or court to take into account the protection of victims and their close relatives. The Bail (Amendment) Act 1989 provided that a special limited review of bail conditions may be held by a court when a person who has been granted bail remains
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