The old Bail Act was drafted, passed and came into effect in 1978, the new act is referred to as a Bail Act 2013, came into effect on 20 May 2014. The new Act shows that “the court has a fresh criteria to apply and a person is generally more likely to be granted bail as compared to using the old one”. The Bail Act 2013 gives the court the following powers, to:

Dispense with bail; that is release a person from custody without any conditions whatsoever

Grant bail conditionally or unconditionally; that is released a person from custody with or without conditions

Refuse bail

It must be noted that the primary purpose of bail is to ensure that the accused attends proceedings for the offence which they have been charged as well as to protect the community and victims. When it comes to discussing bail one of the most important concepts to take into consideration is that of ‘unacceptable risk’. As a result the court must consider whether there is an unacceptable risk that the accused, if granted bail, will:

Fail to appear at any proceedings for the offence

Commit a serious offence

Endanger the safety of victims, individuals or the community

Interfere with witnesses or evidence

In accordance to an amendment of the Bail Act that came into force in January 2015, the court is now required to consider the following with regards to unacceptable risks:

If there are any bail concerns

And if such concerns exist whether there are conditions that may mitigate the concerns

By considering the above two factors this will determine whether or not there is an unacceptable risk attached to the granting of bail.

Bail concerns are set out in Section 18 of the Bail Act and the court is required to consider the following matters:

Background, criminal history, circumstances and community ties of the applicant

Nature and seriousness of the offence

The strength of the prosecution’s case

Any history of violence

Whether the applicant has previously committed a serious offence on bail

If there is a history of compliance or non-compliance with bail acknowledgements, conditions, AVOs, parole orders or good behaviour bonds

If there are concerns with regards to bail that arise from the factors set out in Section 18, the court must consider whether such conditions could be imposed to sufficiently mitigate these concerns.  Section 20a of the Bail Act sets out conditions to satisfy the court.

If you or a family member have been refused bail contact a qualified lawyer immediately and ensure the lawyer is familiar with the new Bail Act 2013. For legal representation in a bail hearing for common assault in NSW contact a law firm of renowned professionals.

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