LAWS1014 Lecture Notes - Lecture 8: Boatswain, Substance Abuse, Young Offenders Act
16 May 2018
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WEEK 8: Bails and Appeals
8.1 Reasons for bail, issues with bail, evolution of the Bail Act
• Role of bail in the criminal justice system: preamble of Bail Act:
Presumption of innocence and the right to liberty
Protection of the community (and particularly, individuals) by preventing further
serious offences
Protection of the integrity of the trial process
• Issues with denial of bail:
Challenges notion of presumption of innocence
Places individuals in dangerous and volatile prison environments
Reduces access to legal advice and support – whenever people are incarcerated, it is
harder ro prepare for one’s case
Normalising punitive pre-trial
Personal impacts – unemployment, childcare, stigma
• Consequences of bail grant for community:
Reoffending
Person fails to appear in court – stalls attainment of justice
Interference with witnesses which may compromise evidence
• The overall ‘balancing act’ – highlights some implications of bail law
Hawi (Harrison J): ‘The Bail Act endeavours to strike a balance between the need to
protect the community from unacceptable risks associated with the release of people
charged with offences on the one hand, and the need to respect the liberty of these
citizens as they await their trial on the other hand. Neither side of that equation if
necessarily or obviously entitled to more weight than the other.’
This is referring to the 2013 Act before the commencement of the 2014 amendments
in January 2015, but the statement is still valid
• Evolution of bail in NSW
Bail Act 1978 (replaced by Bail Act 2013 in May 2014)
▪ Originally tried to make bail easier to get and tried to reduce discriminatory
effect of bail on groups such as the unemployed, juveniles and Indigenous
▪ But initial presumptions in favour of bail were subject to a range of
exceptions, so it was in reality very complicated
From 1988:
▪ For the first time, presumptions created AGAINST bail for certain drug
offences
▪ Presumptions in s 9 in amendments in 1993 and 1998 were exceptions to the
general rule in favour of bail including murder and other violent offences
▪ The presumption against bail for terrorism offences (s 8A) was added in June
2004
1989 – new s22A
▪ Power to SC to refuse to entertain a bail application if it has already been
dealt with by the SC and the court is not satisfied that there are any special
cirucmstnaces or facts that justify making the application
▪ In 2007, this was extended to all courts by the Bail Amendment Act 2007
▪ Specific circumstances which could justify a further bail application was
included in the amendment made by the Courts and Crimes Legislation
Amendment Act 2009.
▪ Is s22A a ‘punitive’ amendment?
Bail and young people
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▪ S 32(1)(b)(v) in amendment in 2002 requires court to take into account any
needs arising from a person being under 18, but no guidance as to how this
should operate and it is questionable whether it is honoured in practice
▪ Amendment of s 22A in the Courts and Crimes Legislation Amendment Act
2009. Here, the Attorney General stated that ‘an alleged criminal’s age does
not justify him or her manipulating the administration of justice’ → are bail
applications a manipulation of justice? What about the presumption of
innocence?
▪ S 22A meant MORE young people remanded in custody than adults
▪ Read more at pages 314-315 textbook – how relevant?
• Reforming the Bail Act
NSWLRC, Bail, Report No 133 2012
▪ Bail laws throw emphasis onto the offence the person is charged and often
their criminal history, instead of allowing a ‘balanced assessment of all the
considerations which bear rationally on the question of detention or release’
▪ Too ‘blunt’ an approach
▪ Recommended that a person should be entitled to release unless detention is
justified having regard to specified circumstances
▪ 5 primary considerations which should be ‘exhaustive as well as mandatory
in order to ensure that irrelevant considerations are not aken into account’
i) the public interest in freedom and securing justice according to law
ii) the integrity of the criminal justice system
iii) the likelihood of harm or threat of harm to any other person in a
domestic relationship
iv) the protection and welfare of the community having regard to the
likelihood that the person will commit a serious offence if released,
and
v) the interests of the person and the person’s family and other associates
Bail law amendments and political influences
▪ After new Bail Act took effect in 2014, only after 5 weeks of operation, when
the media covered some high profile cases where bail was granted, the
government conducted a further review of the Act and immediately
introduced the Bail Amendment Bill 2014 which aimed to implement the
new review’s findings and recommendations
▪ Shows a rushed political process, power of the tabloids and police
8.2 Bail Act 2013
• Presumption in favour of bail and presumption of innocence:
(removed): s 3(1)(2): No explicit presumption in favour of bail but explicitly
emphasises the need for authorities to have regard for the presumption of innocence
And replaced with the Preamble: The Parliament of NSW has regard to (a) safety of
victims of the crime, individuals and community, (b) the need to ensure the integrity
of the justice system, (c) the common law presumption of innocence and the general
right to be at liberty
Instead of being a direction to bail authorities, it states that the bail law HAS taken
into account the presumption of innocence.
S 3(2) Repeal – issues?
▪ Does the repeal of s 3(2) abrogate the presumption of innocence?
▪ McCallum J stated in M v R:
▪ ‘I note that the Amendment Act also removed s 3(2) of the Act, which
referred to the presumption of innocence and the right of an accused person
to be at liberty. The presumption of innocence is, of course, a fundamental
find more resources at oneclass.com
find more resources at oneclass.com
