How a Court Determines Whether to Grant Bail


The primary purposes of bail are to ensure that the accused attends proceedings for the offence which they have been charged and to protect the community and victims. Therefore the concept of ‘unacceptable risk’ is an important one when discussing bail. 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; and/or
  • Interfere with witnesses or evidence.

Prior to amendments to the Bail Act that came in force on 28 January 2015, a bail authority, in most cases, a Court, would be required to first consider whether or not there are any unacceptable risks in granting bail. If so, then the question is if there are any conditions that could be imposed to mitigate the risk. If the answer to that is no, then bail should be refused. Otherwise, bail could be granted either conditionally or unconditionally.

These considerations have now been amended. The Court is now required to consider:

  • If there are any bail concerns; and
  • If so, whether there are conditions that may mitigate the concerns.

The consideration of these two factors will then determine whether or not there is an unacceptable risk.

Step One – Bail Concerns

Bail concerns are set out at section 18 of the Bail Act. The Court must consider only the following matters:

  • Background, criminal history, circumstances and community ties of the applicant;
  • Nature and seriousness of the offence;
  • Strength of the prosecution case;
  • Any history of violence;
  • If 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;
  • Any criminal associations;
  • Length of time the applicant is likely to spend in custody if bail refused;
  • Likelihood of a custodial sentence if convicted;
  • If the applicant has been convicted of the offence and the current proceedings are an appeal, and whether the appeal has reasonably arguable prospects of success;
  • Any special vulnerability of needs the accused has, including youth, Aboriginal or Torres Strait Islander heritage, or a cognitive or mental health impairment;
  • Need to be free to prepare for appearance in court or obtain legal advice;
  • Need to be free for any other lawful reason;
  • Conduct towards any victim of the offence, or family member of a victim after the offence;
  • In a serious offence: views of victim or family members of victims if relevant to a concern that the accused would endanger the safety of victims, individuals or the community;

There are a number of considerations in determining whether an offence is a ‘serious offence’ for the purposes of this section:

  • Whether or not the offence is a sexual or violent one, or involves the possession or use of an offensive weapon or instrument;
  • The likely effect of the offence on any victim and on the community generally;
  • The number of offences likely to be committed or for which the person has been granted bail or released on parole.
  • Any other factors that the Court may consider relevant.

Step Two – Conditions that Mitigate

If there are concerns in relation to bail that arise from the factors outlined above, then the Court must consider whether there are conditions that could be imposed that would sufficiently mitigate those concerns. Please refer to our page on bail conditions the court can impose for further information.

Section 20A, bail conditions are only to be imposed if the Court is satisfied that those conditions are:-

  • Reasonably necessary to address a concern;
  • Reasonable and proportionate to the offence;
  • Appropriate to the concern;
  • No more onerous than necessary;
  • Reasonably practical to comply with; and
  • There are reasonable grounds for the Court to believe that that condition is likely to be complied with.

Determining Unacceptable Risk

The combination of these two steps will allow the Court to determine whether or not there is an unacceptable risk in granting bail, the court will then take action based on that consideration.

  • If there are no bail concerns, bail should be granted unconditionally.
  • If there are concerns, but these can be reasonably mitigated by bail conditions, bail must be granted conditionally.
  • If the Court has determined there are bail concerns and no bail conditions could reasonably be imposed to address the concerns, then there is an unacceptable risk and bail should be denied.

 

 

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