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May 25, 2022
In all NSW / VIC courts
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The new NSW Bail Act places the responsibility of evaluating whether releasing a defendant on bail poses an unacceptable risk to the community on the bail authority. This authority can consist of a police officer, a magistrate, or a court. In situations where police decline bail at the station, the individual must be promptly brought before a court for a bail determination. The court's role involves granting bail when potential "unacceptable risk" can be managed through bail conditions. Conversely, bail is denied when the risk remains unmanageable. While the Act is considered a fairer approach compared to the previous bail system's presumptions, the interpretation of "unacceptable risk" may vary, potentially leading to the establishment of legal precedents.
The concept of “unacceptable risk” is outlined in section 17(2) of the Bail Act 2013 (NSW). It encompasses the likelihood of several factors:
1. The defendant not showing up for their court appearance as scheduled.
2. Engaging in a serious offence while on bail.
3. Positing a threat to the safety of individuals, victims, or the community upon release.
4. Interfering with evidence or witnesses.
In making bail decisions, the court considers various elements, including the defendant’s background, history of violence, compliance with previous bail terms, and the potential for a custodial sentence upon conviction.
The exact boundaries of what constitutes unacceptable risk are still evolving, as these laws are relatively new. Over time, a range of scenarios will likely test and clarify the definition of unacceptable risk, especially in complex contexts.
It’s important to understand that a denial of bail does not signify the end of the road. Instead, if new relevant circumstances arise (as explained below), a follow-up application can be made in the Local Court. Moreover, individuals denied bail still have the right to submit a bail application to the Supreme Court of New South Wales.
Even if bail is denied by the Supreme Court, there is still the option to pursue a subsequent bail application within the Court of Criminal Appeal. This court, which deals specifically with criminal law matters, represents the highest level of the Supreme Court.
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