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Bail is the "authority to be at liberty for an offence" (s 7). It can be granted to an accused person with or without conditions. Part 3 of the Bail Act sets out how a bail authority is to make a decision about whether to grant an accused person bail. A bail authority is a police officer, an authorised justice or a court (s 4).
For some offences, the accused person needs to "show cause"
The decision-making process for bail is different depending on whether the relevant offence is a "show cause" offence. Where an offence is a "show cause" offence, the accused person needs to "show cause" why their detention is not justified. If the accused person does not "show cause", the bail authority must refuse bail (s 16A).
The "show cause" requirement was introduced in 2014 in response to concerns that the existing Bail Act did not do enough to address community safety.
"Show cause'" offences are outlined in s 16B. Some "show cause" offences are:
A "serious indictable offence" is an indictable offence which has a maximum penalty of imprisonment for 5 years or more, or for life (Crimes Act, s 4). Offences will be "indictable" unless they are an offence which either can be or must be dealt with summarily under the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) or any other Act (Criminal Procedure Act, ss 5-6). For certain indictable offences, the accused person can elect for it to be heard summarily (Criminal Procedure Act, Table 1 and Table 2 of Schedule 1).
"Summary" offences include most offences where the maximum penalty is less than 2 years of imprisonment (Criminal Procedure Act, s 6).
Bail must be refused if there is an unacceptable risk of a "bail concern"
If an accused person fulfils the "show cause" requirement, the bail authority moves to the second step of considering the "unacceptable risk" test (s 16A).
If the offence is not a "show cause" offence, the bail authority will go straight to this test.
In summary, the "unacceptable risk" test operates as follows:
The listed "bail concerns" are concerns that an accused person, if released from custody, will:
When assessing the bail concerns, the bail authority must consider the matters outlined in s 18 and cannot consider anything else.
One of those matters is the "nature and seriousness of the offence". In deciding the seriousness of an offence, the bail authority must consider the three factors outlined in s 18(2), as well as any other factor they consider relevant. This includes considering whether the offence involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act (s 18(2)(a)).
In the Crimes Act, "offensive weapon or instrument" is defined at s 4 as a dangerous weapon, anything made or adapted for offensive purposes, or anything that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes. A "dangerous weapon" is defined as a firearm or imitation firearm as those terms are defined in the Firearms Act, a prohibited weapon as defined in the Weapons Prohibition Act, or a speargun.
Should the show cause list include other firearms offences?
As noted above, some firearms offences are already subject to the "show cause" test. For example:
There are a range of other "show cause" firearms offences in the Firearms Act and Crimes Act.
However, other firearms offences are not currently "show cause" offences as they do not fall within the categories of "show cause" offences outlined in s 16B of the Bail Act.
For example, indictable offences involving the unlawful possession of a pistol or prohibited firearm in a private place, as opposed to a public place, are not included as "show cause" offences (Bail Act, s16B(1)(d)(ii)).
Some specific examples include:
This is not an exhaustive list of the firearms offences not currently subject to "show cause". An issue is whether offences such as these should be included in the "show cause" list.
Some may argue the significant risk to community safety posed by firearms justifies adding other firearms offences to the "show cause" list. On the other hand, it could be argued that the existing law already addresses safety concerns.
Should "criminal associations" be defined in the unacceptable risk test?
In assessing bail concerns, bail authorities must consider "whether the accused person has any criminal associations" (s 18(1)(g)).
The Second Reading Speech to the Act which introduced s 18(1)(g) observed that an accused person's links to organised crime networks can affect their level of risk, such as by giving them the means to flee the jurisdiction or continue criminal activity.
"Criminal associations" is not defined in the Bail Act. We have been asked whether it should be.
On one hand, it may be desirable to leave this expression undefined in the interests of flexibility. However, left undefined, there is a risk it could be applied to relationships other than those involving organised crime.
Any definition will need to be well-drafted to avoid any unintended consequences for individuals or communities. Another relevant question is whether any further safeguards should apply to the definition to ensure the law serves its intended purpose and does not overreach.
Should the show cause test be expanded to include other offences related to "criminal associations"?
Some offences related to criminal associations are not currently "show cause" offences. For instance:
These are examples of criminal association offences which are currently not "show cause" offences. It is not an exhaustive list of all criminal association offences in this category.
An issue is whether any criminal association offences should be added to the "show cause" list to target, for instance, activities linked to organised crime.
Some may argue such reforms are required in the interests of community safety. Another view is these concerns can be addressed within the existing bail framework, as bail authorities are required to consider the seriousness of the offence when assessing bail concerns.
26 Sep 2023
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