Bail Act Notes

Team 1 Police Facts (December 25, 2024)

Police responded to a 000 call regarding a domestic dispute at an address in North Caldwell. Carmela Soprano is the PINOP (person in need of protection) in an ADVO (apprehended domestic violence order) against her husband, Tony Soprano.

  • Tony Soprano was present at Carmela's residence for a Christmas function with their children.

  • A verbal argument escalated, leading to Tony grabbing Carmela's wrist and pushing her to the floor.

  • Tony then allegedly threw a glass at Carmela while she was on the floor.

  • Mr. Soprano has been charged with:

    • Assault occasioning actual bodily harm (s 59 Crimes Act 1900 (NSW))

    • Damaging property (s 195 Crimes Act 1900 (NSW)) – related to the broken glass

    • Breach of an Apprehended Domestic Violence Order (ADVO) (s 14 Crimes (Domestic and Personal Violence) Act 2007 (NSW))

  • The particulars of the alleged breach match the other two charges, involving assault and property damage against Carmela Soprano, who is the PINOP listed in the ADVO.

  • The accused is currently on bail for a previous alleged breach of the same ADVO.

  • The case will start with a show cause offence according to the Bail Act.

  • Coercive control under s195 is not being considered.

  • s195 is a Serious indictable offence, found in the Crimes Act, not the Bail Act.

  • The standard of proof is the balance of probability.

  • The Act is silent on specific circumstances.

  • Special or unusual circumstances do not need to be proven initially.

  • If the accused cannot show cause, bail is refused.

  • Week 11: The Unacceptable Risk Test (s17) considers bail concerns such as:

    • Failure to appear in court

    • Committing a serious offense

    • Endangering the safety of victims

    • Interfering with witnesses or evidence

  • The prosecution carries the burden of proof on the balance of probabilities regarding the unacceptable risk test.

Team 2 Police Facts

During sniffer dog drug detection operations at a music festival, Walter White was searched and arrested following a positive sniffer dog identification.

  • Police found a bag containing 10 pills suspected to be 3,4-Methylenedioxymethamphetamine (MDMA or ecstasy).

  • The pills were sent to a forensic laboratory for testing.

  • The accused stated, "they're just for my friends."

  • Jesse Pinkman, who was accompanying the accused, collapsed and received medical care before being taken to the hospital, where he died later that day.

  • The initial indication was that the cause of death was an adverse reaction to MDMA.

  • The accused has been charged with supplying an indictable quantity of a prohibited drug, 3,4-Methylenedioxymethamphetamine, under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW).

Team 3 Police Facts

During a random breath test checkpoint in Dubbo, Connie Taylor was identified as the driver.

  • A police check indicated that the accused was subject to bail conditions requiring her to not leave Sydney.

  • She was arrested for breach of bail and will be brought before a court to have her bail re-determined.

  • The Dubbo ALS office was contacted in compliance with the rights of the accused.

  • s18 is the only matter considered and everything is covered by the section.

  • s19 Matters cannot be refused and there should be no unacceptable risk.

  • Impossible conditions are not allowed and must be according to s20A

  • 28b - device

  • Show cause

    • commercial drug quantity (140 grams)

    • Not a show cause test.

    • s17b endanger to the community.

    • selling to the community

  • The accused’s bail related to one count of offensive language.

  • Police allege that, when questioned by officers in Sydney in relation to suspicious behavior, the accused swore at officers.

  • When placed under arrest for offensive language she pushed one officer with an open hand.

  • The accused has an extensive criminal history of offenses involving police and breach of bail.

  • Show cause

  • Unacceptable risk

  • Community ties.

  • Fine - right to release but because it was a bail then different, but unlikely practically they will do it,

  • 2a - special rules

  • She probably has police bail.

    • they put the conditions on, she hasn't made an application to vary the condition

    • They aren't proportional to the risk

Bail Act 2013 (NSW) Overview

Focusing on the technical components surrounding bail.

  • Consequences of Remand:

    • Remaining in remand for an extended period can significantly impact various aspects of life:

      • Partnerships

      • Employment

      • Financial stability (supporting oneself, renting)

      • Personal belongings and assets

      • Care for pets

      • Responsibilities towards dependents

    • Presumption of Innocence:

      • Important to remember that those awaiting trial are presumed innocent.

      • Guilty Pleas/Verdicts:

      • Most individuals will plead or be found guilty but emphasizes the significance of protecting the rights of the minority.

      • Compensation:

      • There is no automatic compensation for time spent in custody if found not guilty, requiring a tort of malicious prosecution.

    • Difficult Decisions & Responsibilities:

      • Bail decisions are intricate and involve balancing various factors.

      • Magistrates often grapple with these difficult considerations.

      • Risk Assessment:

      • Acknowledges the inherent risk that individuals granted bail may commit further crimes.

      • Inability to Eliminate Risk:

      • It's unrealistic to prevent all individuals on bail from re-offending.

      • Refusal of Bail:

      • Acknowledges the option to refuse bail for everyone charged with a crime.

      • Not an Easy Decision:

      • Emphasizes the weight of these decisions, considering the presumption of innocence.

      • Appeal Process:

      • Bail decisions are initially made locally, with an automatic right to appeal in the Supreme Court.

Background & Custody Statistics

Impact of rushed decisions in local courts on bail.

  • Custody Statistics (BOSCAR):

    • Adults in Custody: 13,103

      • Legal Status:

        • Bail Refused: 5,732

        • Serving Time: 7,371

      • Remand Centre:

        • Silverwater jail is primarily a remand center, indicating a significant number of individuals held while awaiting trial.

      • Not a Small Amount:

        • Highlights the substantial proportion of the population affected by bail decisions.

    • Bail Statistics (BOSCAR):

      • Young People:

        • Bail Refused: 162

        • Serving Time: 67

        • Aboriginal Youth:

          • 139 of the young people are Aboriginal, raising concerns about potential biases in the system.

      • Adult Percentage:

        • Approximately 32% of adults are refused bail, indicating a significant portion of the adult population affected.

      • Worsening Trend:

        • Statistically, the situation is getting worse, with the Australian bail system performing worse than the United States.

      • Why Bigger for Young People on Remand

        • The Nature of Being a Child:

          • Factors such as lacking stable addresses or safe home environments contribute to higher rates of bail refusal for young people.

        • Address Requirement:

          • Inability to provide a suitable address disqualifies many young people from bail.

        • Waiting for Government.

        • Limited Control Over Life:

          • Children lack the autonomy to change their circumstances, exacerbating the impact of even short periods in remand.

      • Most People Aren't Bail Refused

        • Traffic Offences:

          • Most people do pass through the system without being bail refused.

        • Homicide Offences:

          • Those accused no one gets bail.

Understanding Bail Decision-Making

An observation and interview study (BOSCAR) on bail decision-making.

  • Police Bail:

    • Police can grant bail at the station. If refused, the individual is brought before a magistrate. About half of those refused bail by police are granted bail by the court.

  • Police Influence:

    • Police may hint at the possibility of bail, emphasizing the importance people place on returning home.

    • Ebodny madden refused bail had 5 mins with solicitor

  • Definition of Bail:

    • Bail allows an accused person (if not yet convicted) or a prisoner (awaiting sentence or appeal) to be at liberty, possibly with conditions.

Consequences of Custody Pending Trial

Custody before trial can lead to job loss, business disruption, and strained family relationships, even if the accused is acquitted.

Michael Eburn, Roderick Howie, and Paul Sattler, Criminal Law and Procedure in New South Wales (LexisNexis Butterworths, 7th ed, 2023) 734.

Defense Request

Reduced bail is requested, asserting the client is not a flight risk.

Origins of the Current Regime

The law on bail dates back to medieval England, emphasizing the presumption of innocence and the right to liberty.

  • Statute of Westminster, The First (3 Edw.1, c 12, AD 1275).

  • Evolution of Bail

    • The concept of bail evolved to give effect to the presumption of innocence and the right to liberty.

    • Initial Injustice

      • Originally, arrest meant imprisonment without inquiry until the sheriff's or justices' arrival, which could take years.

      • The discretionary power of the sheriff was not defined, and led to great abuses, which were dealt with by the Statute of Westminster, the First (3 Edw.1, c 12, AD 1275).

  • Purpose of Bail:

    • Bail minimizes adverse consequences of delay before trial, enabling accused persons to be released under the care of a surety.
      *Tale old as time. Now - like 3 years, could be 9 months, long enough to ruin your life.

Short History of Bail Reform

Frequent knee-jerk reforms, particularly concerning bail, have occurred, with the 1978 Act replaced in 2013.

  • Primary Concern:

    • Originally, the primary consideration was ensuring the person appeared in court (1978).
      Later Concern

    • Over time, the primary concern shifted to protecting the community from potential crimes, albeit in an ad hoc manner.

Greg Smith & The Bail Act

The Bail Act and Subsequent Amendments.

  • Greg Smith was the DPP and then became politican.

  • 1978 - at least 80 refroms there was so many presumption for bail.

    • The reforms weren't rational or considered.

    • Made it very confusing.

    • Someone would commit x crime. Media coverage. Government changes bail act.

  • Bail Act 2013 (NSW): * Made sense. For a brief period of time.

    • Amendments:

      • The Act has been amended 20 times since enactment, steadily increasing its complexity.

    • Not Long-Lasting:

      • The original form of the act didn't even last 6 weeks.

Example Media Headlines:

  • 'New laws accused wife killer steven fesus to be released after three prior refusals' - daily telegragh

  • 'Premier mike barid to toughen controversial bail act allowed two accused murderers walk'

Show Cause Offense

The biggest aspect of bail consideration is showing cause, where the accused must demonstrate why they should be released.

  • Backdating Imprisonment:

    • If the accused was on bail and imprisoned, the imprisonment gets backdated.

    • Plea Bargaining:

      • Delay can incentivize guilty pleas to avoid prolonged remand exceeding the potential sentence.

    • Defence & Prosecution Application

      • Mad moolly - magistrate. Not only the defence can make application.

        • Detention Application

        • Variation application (condition attached to bail)- often people will agree quite onourous conditions.

      • Prosecution can apply to make it worse

Instructions to Clients

Caution when advising clients to ensure they can meet bail conditions, especially regarding sureties or financial obligations.

  • Ensuring Compliance:

    • Be careful when giving instructions to clients; make sure they are sure they can meet the bail condition.

  • Cash Bail in the US

    • (Less of an issue here, it can be an issue)

Bail Revocation

Bail can be revoked if a surety withdraws their financial guarantee, money, then bail can be revoked.

Bail Act: Rules of Evidence & Decision Making

Rules of evidence do not apply, Decisions are made on the day of arrest using police fact sheets instead of sworn statements. Magistrates make decisions based on potentially unreliable evidence.

  • Streamlined Process:

    • Often the application are made the day people are arrested. S31 bail act.

  • Informal Evidence:

    • Police might not have all the facts; a police fact sheet may be used in place of sworn statements.

  • Potential for Unreliability:

    • Magistrates are making evidence that wouldn't be admitted in court, as it's new and fresh.

  • Standard of Proof:

    • S32 - matters to be decided on the balance of probabilities

Show Cause Requirement: Legal Framework

Show cause requirements under Bail Act s16 A + B. Accused must show why their detention is NOT justified (only applies to adults).

  • Grounds for Show Cause (s16B):

    • Punishable by imprisonment for life.

    • A serious indictable offense.

    • Sexual intercourse with a minor (under 16) or with someone above the age of 18 due to abuse of authority.

    • GBH (grievous bodily harm) - 14 years.

    • Serious domestic violence offense (S54D is abusive behavior towards formal or current partners).

  • Practical Application:

    • Showing show cause is not simple. If you have only 5-10 minutes, get instructions and understand the requirements.

    • If you can't show cause, bail is refused.

    • Everybody Else:

      • For everyone else- unacceptable risk test.

  • Dual Requirement:

    • Those who must show cause must also pass the unacceptable risk test.
      Practical Consideration

    • In practice, the steps are combined due to time constraints and perceived overlap.

Unacceptable Risk Test: Framework and Considerations

The Unacceptable Risk Test (s17) applies to all bail applicants, focusing on four bail concerns:

  • Bail Concerns:

    • Every argument must directly relate to these four concerns from s17, otherwise, it won't be relevant.
      *Fail to appear *(2a)*
      *Commit a serious offense *(2b)*
      *Endanger the safety of victims *(2c)*
      *Interfere with witnesses or evidence *(2d)*

Matters to Be Considered

  • Comprehensive Assessment (s18):

    • Police can bail you from the police station- if refused then brought to magistrate (about half refused by court get bail).

    • and only the following matter - but it's like everything in the world. Your only limited by everything. E.g. your background is everything before today.

    • Criminal history

    • Community ties (e.g., small business, small children, community organization, church group)

    • Nature of the Offense (s18B):

      • This helps determine the seriousness of the risk.

      • Is it random against strangers? Or specific?

      • Compare a wife killing her abuser husband versus someone getting drunk and randomly hurting people.

  • Strength of the Prosecution Case (s18C): * Often difficult to determine on the day of applications, but factors like video footage could be available. * Are they going in on pleading guilty? Pace project Magistrate in Newcastle - strength of case and are they going in of guilty.

    • History of Violence (s18D):

      • Duplication from A

    • Seriousness of Offense (s18E):

      • Is it indictable? What do we know?

    • History of Compliance (s18F):

      • Relevant records related to bail conditions

    • Criminal Association (s18G):

      • Tricky due to relaxed evidentiary rules; difficult to test in bail applications.

    • Likely Length of Custody (s18H):

      • The total potential length of time likely to spend in custody - shouldn't be spending more time than they would spend if they were lose.

      • Delay.

Importation of Drugs: Bail Complexity & Factors

Importation of drugs is complex due to organized crime and international aspects. This case brings unique challenges.

  • Complexity Factors:

    • Group of people alleged in organized crime across a number of countries

    • Anon - they thought they were using an annoymous app - but the police created it.

    • Alot of arguements for the admissible of this evidence
      Someone alleged to be in a international organized crime - flee country ? we had to destroy the village in order to save it

  • Criminal Association (s18G):

    • Back to the Bail Act

  • Health Vulnerability (s18L):
    * COVID-19's rapid spread in jails = vulnerable health - alot of application for bail in pandemic. A special vulnerability
    * Free to Get Legal Advice (s18L).
    * The accused wants to be free for legal advice, and M, N, O, P, and Q all serve special circumstances.
    * Legal Reasons (s18M): The need to be free for example
    * Wedding
    * Exams

  • Victim Considerations: (Domestic Bail Condition)
    * Domestic argument- bail reports sit on christmas day. Even on Christmas Day. N) victim O) victim of offence to police.

    • Other Lawful Reasons (s18M):

  • Practically Judges consider bail conditions from S16-Terrorism offenses (flow chart in the act) S22Q

Bail Conditions & Conduct Requirements

To sum - Relate to the bail concernsAnd the matters for assessment (basically everything)Conditions can be apart of the negoation.You have to be careful not to set them up to fail - conditions that are onournes. If someone is an acholic they cant be set up with conditions not to drink alchol. Dont sign up to things that are unrealistic - even if the client agrees.Essentailly - anything can be a bail condition. Essential - anything can be a bail. Concerns s17 and try to think of bail conditions that fit the concerns.What the magistrate going to be worried about What conditions can relieve these.

  • Requirements for Bail Conditions:
    * Relate to the bail concerns
    * Matters for assessment (essentially everything)
    Negotiation.
    Someone - sitting in a cell will agree to anything to get out.

  • Reporting Daily
    S25- conduct requirements
    Limited to only you imagine
    * Refrain from drinking Alchol
    * Only have one phone with no encrypted apps.

  • Security
    S26 - sercuity (money)
    * Agreeing to forfeit (they are gonna make you demonstrate they you are someone who can pay 10k etc…
    * Money be despositedTitle to house or soemthing

S27 - CHARACTER ACKNOWLEDGEMENT
*Given by an acceptable person bla bla.
Be a challenge if the bail application is that day.
Cannot have a criminal record

CLASS, WEALTH, ADVANTAGE
Its funny the weight the court gives to someone daying theyre a good person

AccomodationRequirement
S28 - ACCOMMODATION REQUIREMENT
For children or for rehab
*
They will be bail as soon as bail is found - which can take some time.
Addict be bailed to rehab facilities - not jail but supervised.
S28 B- NEW WOOOW I

  • Subject to 1c1, then have to go to serious domestic violence bla bla

Ankle Moniters - NSW Bail Considerations

Ankle monister - insufficient tech to go aroundTehy break all the timeThehy are provided by private companiesYou might not be doing anything wrong it just brokeThe accused has to payStay in until you can be fitted wiht a device.

  • Practical Issues:
    Some of the practical issues aren't address - payment, functionality etc.What are the magistrate going to be worried about - what conditions can you address.

  • E.g. bail condition to comply with AVO or maybe have to keep 500 metres from x person

Terrorism & Other related offences

22A- terrorism related offences Uncommon Different standard applies.
22B - new reform

Concern with person being found guilty - what they do on bail might change - often they just commit suicideRaise the bar to get bail

Legislative Concerns Background (Young Offenders)

22C (inserted 2024) represents what many consider to be among the top 5 worst criminal law reforms. The legislation arose from heightened concerns about crimes committed by young people in western New South Wales, with a notable proportion involving Aboriginal youth. Critics argue that instead of addressing the underlying causes that lead these young people to commit crimes, the government opted for another reform, which some view as a superficial solution. This reform is specifically aimed at young Indigenous people.

  • 'High Degree of Confidence':

    • This standard, requiring a 'high degree of confidence,' is unprecedented in criminal law, signaling a significant departure from traditional legal thresholds.

  • 14-18 years: 'Relevant Young Person'.

    • The legislation targets individuals aged 14 to 18, categorizing them as 'Relevant Young Persons' under the scope of this reform.

Step 1C: Judge Rothman's Perspective

  • Rothman's Critique:

    • Step 1C reflects Judge Rothman's pointed critique, suggesting skepticism towards the effectiveness and rationale behind the government's approach.

Specific Cases Targeted

  • Specific Cases for Breaking and Entering / and Posting (154K):

    • The reform addresses specific cases related to breaking and entering, as well as offenses under section 154K, indicating a targeted approach towards particular types of criminal behavior among young offenders.