The Law Reform Commission
of the Australian Capital Territory
____________________________________________________
BAIL
Proposals for legislative reform
Canberra
Bail for minor offences
1. That the entitlement to unconditional bail should not apply where a person is arrested for a minor offence while the person is on unconditional bail for another minor offence.
2. That the entitlement to unconditional bail at ss. 7(2) of the Bail Act 1992 should not apply to multiple minor theft (s.99A, Crimes Act 1900), minor criminal damage offences where the aggregate property value exceeds $1000 (ss.128(4) Crimes Act 1900), possession of a disabling substance or offensive weapon in a public place (s.494 Crimes Act 1900) and possession of a knife in a public place or school (s.495 Crimes Act 1900). In each case, the presumption in favour of bail would apply (ss.8(2) Bail Act 1992).
3. That recommendation 2 above may be implemented by applying paragraph 7(3)(f) of the Bail Act 1992 which provides that ss.7(2) (relating to the entitlement to unconditional bail) does not apply in relation to a person charged with a prescribed offence.
4. That the entitlement to unconditional bail should not apply where the accused:
(a) has been released on bail pursuant to ss.7(2) in relation to a charge or charges not yet determined; and
(b) has, within a period of 12 months preceding the date of the charge, either failed to comply with an undertaking to appear (in respect of an indictable offence) or failed to appear on not less than two occasions.
Bail for offences other than minor
offences
5. That a presumption against bail should be inserted in similar terms to ss. 4(2) and 4(4) of the Bail Act 1977 (Victoria) reversing the presumption in favour of bail at ss.7A, 8 and 8A of the Bail Act 1992 and placing the onus of proof on the accused.
6. The Commission proposes that in substitution for ss. 8(2) of the Bail Act 1992 provisions in the following terms be inserted:
(2) Nothwithstanding the provisions of subsection (1) where the accused person -
(a) is charged with:
(i) treason or murder; or
(ii) any offence in the course of committing which the accused person is alleged to have used or threatened to use violence with a weapon; or
(iii) an indictable offence that is alleged to have been committed while he was at large or on bail awaiting trial for another indictable offence; or
(iv) contravening a protection order or restraining order in the course of committing which the accused person is alleged to have used or threatened to use violence and the accused person has within the preceding 12 months been convicted or found guilty of an offence in the course of committing which he or she used or threatened to use violence against any person; or
(v) an offence of trafficking in relation to a commercial quantity of a drug of dependence in circumstances where the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that narcotic plant or an offence of conspiring to commit either of those offences; or
(vi) an offence under sections 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth (as amended and in force for the time being) in relation to a commercial quantity of narcotic goods within the meaning of that Act - unless the court is satisfied exceptional circumstances exist which justify the grant of bail.
(b) is in custody pursuant to the sentence of a court for some other cause;
(c) is charged with an offence against this Act or is in custody where bail has been refused unless the accused person satisfies the court that the failure of the accused to comply with his/her bail undertaking was due to causes beyond his/her control;
the court shall refuse bail unless the accused person shows cause why his detention in custody is not justified and in any such case where the court grants bail the court -
(I) if constituted by a judge or magistrate, shall include in the order a statement of reasons for making the order; or
(ii) in any other case, shall, as prescribed by regulations record and transmit a statement of reasons for making the order.
(3) In granting bail a court may impose conditions in accordance with sections 25 or 26.
(4) In subsection (2) -
`violence' means facts that establish
an offence against the person.
[Note: It is intended by this definition to exclude harassing and intimidating conduct which given the difficulty of proving should not affect the presumption in favour of bail.]'
Young Persons
7. Subsection 5(4) of the Children's Services Act 1986 requires a court or an authorised officer to regard the best interests of a young person as the paramount consideration. The Commission considers that this obligation is in conflict with the broader criteria to be applied in relation to the grant of bail and should be removed. The `best interests' of a young person should not assume paramountcy over the criteria to be applied in relation to bail or the principles applicable to the application of the criminal law.
8. The Commission considers that the recommendations at paragraphs 1, 2, 4 and 5 above relating to bail for minor offences and offences other than minor offences at sections 7, 7A and 8 of the Bail Act 1992 should apply equally to young persons.
9. The Commission considers that the inability of the court to impose conditions in the circumstances to which ss.26(3) refers is unnecessary as is the obligation to consider in sequence the matters detailed at ss.26(2). As ss.26(1) requires the court to have regard to ss. 5(1) and 5(3) of the Children's Services Act 1986 in determining the conditions that may be imposed on the grant of a bail to a young person, any limits upon the discretion of the court or an authorised officer imposed by ss.26(2) and 26(3) should be removed.
Victims
10. The Commission considers that the provisions relating to bail at sections 23A and 27A of the Bail Act 1992 should be consolidated and relocated into a separate division relating to victims. The Commission also considers that the criteria for the grant of bail to adults and children at sections 22 and 23 of the Bail Act 1992 should be amended to give more weight to the protection of victims. The preferred model is detailed in section 32(1)(b) of the Bail Act 1978 (NSW) which provides that consideration should be given to the protection of:
(a) any person against whom it is alleged the offence was committed; and
(b) close relatives of that person; and
(c) any other person considered to be in need of protection due to the circumstances of the case.
11. The Commission considers that the notice to the victim of a bail decision to which s.46A of the Bail Act 1992 refers should include notice of the courts capacity to revoke or vary bail pursuant to paragraph 19(1)(b) of the Bail Act 1982 on the application of the Crown or the complainant, as recommended at paragraph 32 below.
Bail for breach of the peace
13. That where a person has been arrested to avert a possible breach of the peace and a police officer has not unconditionally released or administered a formal caution to that person (which may be given in antecedence for any subsequent offence) the police officer should either:
(a) grant bail requiring an appearance before the court as soon as practicable (not longer than 48 hours):
(i) on condition that the arrested person keep the peace; and/or
(ii) on such other conditions as may be appropriate in the circumstances; or
(b) take the person before the court as soon as practicable.
Mental health
14. That definitional issues relating to `mental illness' and `mental dysfunction' require further consideration.
15. That the Commission considers that provisions replicating the scheme of Part 3 of the Mental Health (Criminal Procedure) Act 1990 (New South Wales) should be inserted into the Bail Act 1992:
(a) to apply in relation to committal proceedings in addition to offences triable summarily before a Magistrate; and
(b) providing that section 33 be expressed to apply:
(i) if the Court is prima facie satisfied that the person is mentally dysfunctional and that-
- the person's health or safety is, or is likely to be, substantially at risk; or
- the person is, or is likely to be, a danger to the community.
[Note: The foregoing is consistent with the criteria to be applied by the Mental Health Tribunal for the purpose of making an assessment order (refer s.16 of the Mental Health (Treatment and Care) Act 1994)];
or
(ii) where the accused is required to submit to the jurisdiction of the Mental Health Tribunal pursuant to an order under s.83A of the Children's Services Act 1986, Part XIA of the Crimes Act 1900 or Part IV of the Children's Services Act 1986;
(c) providing that the court should have regard to any conditions imposed by the Mental Health Tribunal or any conditions which may be imposed by the Mental Health Tribunal pursuant to the Mental Health Act 1995.
Home Detention
16. That the Government examine the feasibility of enabling a condition of bail to be imposed whereby an accused, while on bail, must remain at and not leave the place specified until the time specified, except;
(a) with approval, to work in gainful employment or seek gainful employment;
(b) to obtain urgent medical or dental treatment;
(c) for the purpose of averting or minimising a serious risk of death or injury to the defendant or to another person; or
(d) any other approved purpose.
Procedural Matters
Consolidation
17. That provisions relating to bail in the Magistrates Court Act 1930 and the Supreme Court Act 1933 should be consolidated into the Bail Act 1992.
Duration of remand in custody
18. That the time limit of 15 days imposed at ss.70(1) of the Magistrates Court Act 1930 should only apply to persons in custody who have been granted bail and who are unable to satisfy the conditions of bail imposed. Any remand of a person in custody should be for a specified period fixed by the court.
Recognizance of witnesses
19. Provisions relating to recognizance requiring witnesses to appear before a court should be substituted for provisions to be inserted into the Bail Act 1992 requiring witnesses to enter into bail to secure their appearance.
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20. That provisions be inserted which enable the court to give directions as to the manner in which it receives evidence and the manner by which the accused may participate in proceedings. In determining what conditions may be appropriate, the court should be required to consider:
(a) the capacity of the accused to instruct solicitors;
(b) the conduct of the accused;
(c) the capacity of the accused to give evidence; and
(d) a presumption in favoufr of the accused physically appearing before the court unless;
(i) the accused person is legally represented; and
(ii) the accused person expresses a desire not to attend before the court.
21. That the accused should physically appear before the court on any occasion where the accused is to be formally charged with any offence. The foregoing may be included as criteria by which an accused person may be excused from attendance before the court pursuant to s.30 of the Bail Act 1930.
Identification of the accused
22. That for the purposes of ss.25 (2) of the Bail Act 1992 where an accused person is required as a condition of bail to report periodically or at specified times or at a specified place, the police officer or person to whom the accused person is required to report should have the power to request that the accused person provide proof of identity.
Entering into bail
23. That provisions be inserted which would enable a bail undertaking by an accused person or their surety or sureties to be executed:
(a) before any Registrar or Deputy Registrar of a Court of another State or Territory;
(b) by a surety who is out of Australia before a consular official in an Australian mission overseas. Where a bail undertaking is executed by a surety who is not present in Australia, there should be a presumption that the amount specified be secured by the payment of cash to the consular official as the agent of the Court.
24. That to facilitate the lodgment of any security, provision should be made for the payment of money by credit card or the lodgment of a bond. The lodgment of a bond could be effected in the same way as lodgment of a bond or security pursuant to Order 26 of the Supreme Court Rules or s.85 of the Magistrates Court (Civil Jurisdiction) Act 1982.
Malicious prosecution
25. That for the purposes of s.22 of the Bail Act 1982 the court should be required to have regard to any evidence which suggests that the charges against the accused are malicious or otherwise frivolous or vexatious.
Breach of bail conditions
26. That in addition to the offence for breach of a condition of bail, at s.49 of the Bail Act 1992 provisions should be inserted to enable the court to issue a warrant for the arrest of any person who has failed to comply with a term or condition of his/her bail. The Commission considers also:
(a) that police should be given the power to arrest a person without a warrant where there are reasonable grounds to believe that the person is likely to breach a term or condition of his/her bail; and
(b) that the court should be given the power to issue a warrant for the arrest of a person where the court is of the opinion that it is necessary or advisable in the interests of justice for the terms or conditions of bail relating to that person to be amended or supplemented.
27. To give effect to the recommendations detailed at recommendation 26 above, the Commission recommends:
(a) that the authority of police to arrest without warrant for breach of a bail condition detailed at ss. 349Z and 349ZA of the Crimes Act 1900 should be relocated into the Bail Act 1992 and consolidated with provisions in similar terms to ss. 28B, 29 and 29A of the Bail Act 1980 (Queensland) and s.24 of the Bail Act 1977 Victoria);
(b) that where a person has been arrested for a breach or likely breach of a bail condition, that person is to be taken before a Judge or Magistrate as soon as practicable with any entitlement to bail to be by way of a rehearing of the original bail application. The court should also be able to receive evidence of the alleged breach to consider whether or not bail should again be granted and the terms and conditions to be imposed; and
(c) that provisions be inserted providing that;
(i) any
- alleged offence relating to a breach of a condition of bail or for failing to answer bail; or
- arising from the arrest of a person for a breach or likely breach of a condition of bail;
should be dealt with in the court which granted the bail; and
(ii) that the Registrar may enforce any breach of a bail undertaking as the informant.
Forfeiture of bail
28. That provisions be inserted which clarify the effect of a bail forfeiture and the liability of any surety. The Commission considers that s.37 of the Bail Act 1992 should be amended to provide that an order forfeiting bail is to have effect as if it were a judgment of the Supreme Court or the Magistrates Court (depending upon the court in which the grant of bail was made) 28 days after service of a notice upon the surety advising of the order of the court forfeiting the surety's security. The notice should advise the surety that they may apply to the court to set aside the order of forfeiture. Any such application should be made within 28 days of service of the notice upon the surety. In determining whether to order the reversal of any order forfeiting the surety's security, the court should have regard to:
(a) action taken by the surety to ensure compliance by the accused person with the conditions of bail imposed;
(b) the provision of information relating to the accused person's whereabouts; and
(c) whether the person has applied
to the court to be released from their obligations.
29. That notice of the matters detailed at recommendation 28 be included in the the bail undertaking signed by the surety.
Variation or revocation of bail
30. That further to the capacity at paragraph 19(1)(b) of the Bail Act 1992 to enlarge, vary or revoke bail, the court should be given the capacity to issue a warrant for the arrest of a person where it is of the opinion that it is necessary or advisable in the interests of justice for the terms or conditions of bail relating to that person to be amended or supplemented (note in this regard ss. 25 and 26 of the Bail Act 1977 (Victoria)). The Commission also considers that a procedure for the revocation or variation of bail should be prescribed. In this regard, the Commission considers that s.30 of the Bail Act 1980 (Queensland) provides an effective legislative precedent. That section enables a complainant or the prosecution to seek to vary or revoke bail and provides:
Acceptable person
31. That s.25 of the Bail Act 1992 be amended to define an `acceptable person' as including a person not present within the Territory who is prepared for the purposes of paragraphs 25(1)(b) - (e) to provide an acknowledgment in writing to a Registrar or Deputy Registrar of a court of another State or Territory.
Prescribed means of payment
32. That for the purposes of paragraph 25(1)(e) of the Bail Act 1992 `prescribed means of payment ' should be defined by instrument to include electronic funds transfer (EFT), bank guarantee, credit card or bond.
Continuation and extension of bail
33. That the existing regime of appearances
for all bail continuations and extensions should be preserved.
The Commission has considered the system that operates in Victoria
relating to Bail Justices and prefers the involvement of Judicial
Officers so as to enable proper consideration of the application
and any impediments that may exist to a speedy trial. The Commission
recommends that following indictment all matters relating to bail
should be dealt with by the Supreme Court or such other Court
as may be seized of the matter by reason of the filing of an appeal.
1. The Terms of Reference were received by the Commission at the end of 1997. A copy of the terms is at Attachment A. The purpose of the Commission's deliberations has been to simplify the conditions of bail and to bring greater certainty to the application of the law. The Commission has been mindful of public comment in certain notorious cases in the Territory that bail has either been too easy to obtain against the public interest or too uncertain to obtain. In its deliberations, the Commission has been keen to preserve the general entitlement to bail arising out of the fundamental principles of the criminal justice system balanced against the need to protect the victims of crime and the attendance before the courts of the accused.
2. The Commission formed a working group comprising
representatives from the Magistrates Court, Supreme Court, Legal
Aid Office (ACT), the Australian Federal Police and the Director
of Public Prosecutions. The working group held several meetings
and provided valuable insight into the operation of the Bail Act
and the effect of the proposed reforms. Working group members
proposed various reforms, all of which have been adopted by the
Commission.
3. The Criminal Law Consultative Committee
of the Law Reform Commission also considered the draft proposals
for reform. The membership of the Criminal Law Consultative Committee
is detailed at Attachment B The Committee debated various
reform proposals with the proposal relating to the reversal of
the presumption in favour of bail for serious offences, the most
contentious. While the Committee expressed some initial concerns,
the proposals detailed in this report reflect the deliberations
of the Committee and the Commission's response to the issues raised.
The proposal enabling conditions to be imposed where an accused
person is referred to the Mental Health Tribunal for assessment
were also considered in some detail. The Committee rejected any
notion of preventative detention and considered that any reform
should facilitate necessary assessment or treatment for an accused.
In this regard, the needs of persons who are mentally dysfunctional
as opposed to those who were dysfunctional due to substance abuse
were considered. The Commission is aware of and will need to consider
the recent proposed amendments to the Mental Health Act 1962.
4. The Commission proposes to consult directly with the Victims of Crime Assistance League and the Victims of Crime Coordinator in relation to the reform proposals. The Commission also proposes to consult directly with the Community Advocate and the President of the Mental Health Tribunal concerning the Commission's proposal to enable conditions of bail to be imposed relating to the treatment of an accused person. The Commission has advertised the availability of this draft report and will consider any submissions in the preparation of its final report.
1. The scheme of the Bail Act 1992 is detailed at Attachment C. Where a person has been arrested with or without a warrant the police may:
2. Part II of the Bail Act 1992 creates
an entitlement to bail for all persons charged with an offence.
In effect, there is a presumption in favour of bail in all cases
subject to the criteria detailed at ss. 22 and 23 for offences
other than minor offences. Minor offences are defined at s.7 of
the Act.
3. The general provisions relating to court
bail are contained in s.19 of the Bail Act 1992 and the
criteria for granting bail to adults is set out in s.22. They
deal with the probability of the person appearing before the court,
having regard to the background and community ties of the person,
the nature of his/her home environment, employment details, prior
criminal record and the circumstances in which the offence is
alleged to have been committed, etc. The criteria to be applied
for granting bail to a child (being a person under 18 years of
age) is set out in s.23. That section requires the matters referred
to in s.5 and paragraphs 22(1)(a), (b), and (c) of the Children's
Services Act 1986 and any report provided pursuant to s.162
of the Act to be considered.
4. When adjourning matters where the accused
person is already on bail, the court would normally grant bail
with or without sureties or on conditions. The court may, however,
dispense with the requirement for bail (ss.10(1)). While an accused
person need only enter into one bail undertaking if more than
one charge has been proffered, where that bail undertaking includes
conditions, those conditions apply in respect of each offence
and the court shall have regard to all offences in considering
to grant bail and the conditions which may be imposed (s.21).
5. The Court's powers to impose conditions
are set out in Part V of the Act and a breach of a condition of
bail, not being a condition to attend court, normally results
in the matter being referred to the Australian Federal Police
for the arrest of an offender. Section 349Z of the Crimes Act
1900 provides that a police officer may, without warrant,
arrest a person admitted to bail if the police officer believes
that the person has either failed to comply with a bail condition
or will not comply with a bail condition.
6. The conditions that may be imposed on a
grant of bail to an accused person include:
7. The amount of any surety may be lodged in
cash with the court (s.25).
8. Conditions that an accused person may be
required to observe relating to his/her conduct may include:
A court or an authorised officer in granting
bail to an accused person who has been charged with a `minor offence',
shall not impose a condition unless the accused person:
In relation to offences other than minor offences,
the court or the authorised officer shall not impose a condition
unless they are of the opinion that the imposition of a condition
is necessary to secure one or more of the following purposes:
Subsection 25(2) provides that the court or authorised officer shall not require the accused person to give an acceptable security where there are reasonable grounds for believing that the accused person does not have the means to provide such security or make the relevant deposit.
9. An accused person shall not be released on bail unless s/he undertakes by instrument to appear before a specified court:
10. It is an offence to make an acknowledgment
of bail knowing it to be untrue in any material way and, the court
or person to whom the acknowledgment is made, must warn the person
accordingly.
11. If an accused person does not or cannot enter his/her bail for any reason, a remand warrant is issued and the accused person conveyed to the Belconnen Remand Centre; unless the matter is referred back to the court. Section 48 provides that the court shall be notified, within seven days that the person is still in custody because s/he failed to meet a condition of bail and the court may then conduct its own review of the bail requirements imposed.
12. Section 37 of the Bail Act 1992
provides that where a person granted bail fails to comply with
his/her undertaking to appear and that person or another person
has entered into an agreement pursuant to a bail condition to
forfeit an amount of money, the Court may declare that amount
or any part of it to be forfeited and order the person who entered
the agreement to pay the forfeited sum to the Territory.
13. The Bail Act 1992 also provides
that an amount forfeited may be recovered by the Territory in
the Magistrates Court as a debt due to the Territory, irrespective
of the amount involved.
14. The forms used by the courts contain appropriate
warnings and advice in relation to non-compliance. The forms advise
that failure to attend will result in the issue of an arrest warrant
and if the failure to appear is without reasonable excuse, the
accused person may be guilty of an offence pursuant to s.49 of
the Bail Act 1992.
15. A person who fails to comply with conditions imposed on the grant of bail may be apprehended without warrant and brought before a court which may reconsider the accused person's entitlement to bail, and may remand the person in custody. The court may also order that any surety who has entered into an agreement to forfeit a sum of money may have some or all of that amount forfeited.
16. Section 41 of the Bail Act 1992 provides that an accused person or an informant may apply for a review of any decision by a court or an authorised officer in relation to bail. The power to review includes a power to affirm, vary or substitute another decision and the court is frequently asked to review or reverse orders for the forfeiture of bail undertakings either made by an accused person or by a surety. The court. however. may refuse a request to affirm, vary or substitute in relation to bail, if the application is frivolous or vexatious.
17. Where an accused person fails to attend
court in accordance with a bail undertaking the court normally
orders that the bail and any security offered be forfeited forthwith..
Responsibility for the enforcement of orders made by the court
rests with the Registrar. Where an accused person has failed to
attend, the Registrar causes a letter to be sent to the accused
person and any surety(s) advising them of the court's order and
that payment is required to be made to the court within a specified
period of time. If the security offered involves the deposit of
cash, the person who has deposited the security is advised that
that amount has been forfeited.
18. In addition to the orders made by the court, the Director of Public Prosecutions returns the brief to the Commissioner of Police with written advice as to the failure of the accused person to appear and requesting that the informant seek a first instance warrant for the arrest of the accused person on a charge of breaching s.49 of the Bail Act 1992 (failure to answer bail). The commanding officer of the relevant police district then forwards a minute to the police informant, together with the brief, requesting that the informant take the necessary action for the issue of a first instance warrant. The informant is then required to attend at the court with the relevant brief and an affidavit setting out reasons why the warrant is sought as required by section 349ZD of the Crimes Act 1900. The court then prepares an information and warrant and an issuing officer subsequently issues the warrant for the arrest of the accused person after the informant has sworn the information. An issuing officer is defined at s.349AA of the Crimes Act 1900 and means for the purpose of the Magistrates Court:
If the police informant fails to attend at
the court to execute the documentation necessary to enable a warrant
for the arrest of the accused person to be issued, a follow up
letter is sent to the Officer in Charge of Operations by the court.
The warrant subsequently issued is forwarded to the Australian
Federal Police for necessary action.
19. If a sum of money forfeited by order of the court remains unpaid, a warrant of execution is issued for execution against the goods and chattels of the person liable by the Bailiff of the Magistrates Court. Procedures relating to the execution of warrants of execution are detailed in Part XVIIIA of the Magistrates Court (Civil Jurisdiction) Act 1982.
1. The entitlement to unconditional bail should
not apply where a person is arrested for a minor offence while
the person is on unconditional bail for another minor offence.
Further the entitlement to unconditional bail should not apply
to multiple minor theft (s.99A, Crimes Act 1900), minor
criminal damage offences where the aggregate property value exceeds
$1000 (ss.128(4) Crimes Act 1900), possession of a disabling
substance or offensive weapon in a public place (s.494 Crimes
Act 1900) and possession of knife in a public place or school
(s.495 Crimes Act 1900). In each case, the presumption
in favour of bail would apply (ss.8(2) Bail Act 1992).
These offences may be prescribed for the purposes of paragraph
7(3)(f) of the Bail Act 1900 which provides that ss.7(2)
(relating to the entitlement to unconditional bail) does not apply
in relation to a person charged with a prescribed offence.
2. The entitlement to unconditional bail should not apply where the accused:
(a) has been released on bail pursuant to ss.7(2) in relation to a charge or charges not yet determined; and
(b) has, within the period of 12 months preceding
the date of the charge, either failed to comply with an undertaking
to appear (in respect of an indictable offence) or failed to appear
on not less than two occasions.
3. In all Australian jurisdictions the grant
of bail is at the discretion of the judicial officer or other
prescribed bail authority. The general discretion is to be exercised
with regard to specified criteria. These criteria while expressed
in different forms are not inconsistent with the criteria specified
at ss.22 and 23 of the Bail Act 1992 (ACT). In some jurisdictions,
the general discretion to grant bail has been limited. The circumstances
under which the grant of bail has been limited or the circumstances
under which any reversal of any presumption in favour of bail
has been prescribed, are detailed hereunder:
A. QUEENSLAND - BAIL ACT 1980
Section 16
(1) Notwithstanding this Act, a court or a police officer authorised by this Act to grant bail shall refuse to grant bail to a defendant if the court or police officer is satisfied -
(a) that there is an unacceptable risk that the defendant, if released on bail -
(i) would fail to appear and surrender in custody;
(ii) would, while released on bail -
(A) commit an offence; or
(B) endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else's safety or welfare; or
(C) interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
(b) that the defendant should remain in
custody for the defendant's own protection.
(1A) Where it has not been practicable to
obtain sufficient information for the purpose of making a decision
in connection with any matter specified in subsection (1) due
to lack of time since the institution of proceedings against a
defendant, the court before which the defendant appears or is
brought, shall remand the defendant in custody with a view to
having further information obtained for that purpose.
(2) In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a, the court or police officer shall have regard to all matters appearing to be relevant and, in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant -
(a) the nature and seriousness of the offence;
(b) the character, antecedents, associations, home environment, employment and background of the defendant;
(c) the history of any previous grants of bail to the defendant;
(d) the strength of the evidence against
the defendant.
(3) Where the defendant is charged -
(a) with an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant's apprehension and the date of the defendant's committal for trial or while awaiting trial for another indictable offence; or
(b) with an offence to which section 13 applies (which concerns matters upon which only the Supreme Court may grant bail); or
(c) with an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or
(d) with an offence against this Act;
the court or police officer shall refuse
to grant bail unless the defendant shows cause why the defendant's
detention in custody is not justified and, where bail is granted,
shall include in the order a statement of the reasons for granting
bail.
(4) In granting bail in accordance with
sub section (3) a court or police officer may impose conditions
in accordance with section 11.
B. NORTHERN TERRITORY - BAIL ACT
Section 7A
(1) This section applies to the following offences:
(a) murder;
(b) treason;
(c) an offence against the Misuse of Drugs
Act the penalty for which, on conviction, is imprisonment for
more than 7 years.
(2) A person accused of an offence to which
this section applies is not to be granted bail unless the person
satisfies an authorised member or court that bail should not be
refused.
(3) The requirement for bail cannot be dispensed
with for a person accused of an offence to which this section
applies and subsection 9(2) does not apply with respect to any
such offence.
Section 23A
Notwithstanding anything in this Act, where an appeal is pending in the Court of Appeal against -
(a) a conviction on indictment; or
(b) a sentence passed on conviction on indictment,
bail shall not be granted by the court or
any other court unless it is established that special or exceptional
circumstances exist justifying the grant of bail.
C. WESTERN AUSTRALIA - BAIL ACT 1982
Clause 3A - Schedule 1
(1) Nothwithstanding clause 1 or 2 (which details matters to be considered in relation to the general discretion to grant bail) or any other provision of this Act, where -
(a) a defendant is in custody awaiting an appearance in court before conviction for a serious offence; and
(b) the serious offence is alleged to have been committed while the defendant was on bail for another serious offence or for a group of offences which includes a serious offence,
the judicial officer or authorized officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless he is satisfied that -
(c) there are exceptional reasons why the defendant should not be kept in custody; and
(d) he may properly grant bail having regard
to the provisions of clauses 1 and 3 or, in the case of a child
defendant, clauses 2 and 3.
(2) Notwithstanding subsection (1) of section 7, where a defendant is refused bail under subclause (1) of section 7, where a defendant is refused bail under sub clause (1) for an appearance for a serious offence his case for bail need not be considered again under that subsection for an appearance for a serious offence unless he satisfies the judicial officer who may order his detention that -
(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or
(b) he failed to adequately present his
case for bail on the occasion of that refusal.
(3) Where a child defendant is refused bail
under subclause (1) he shall be dealt with in accordance with
section 33(3) of the Child Welfare Act 1982.
Note: Subsection 3(1) of the Bail Act 1982 defines `serious offence' to mean an offence described in Schedule 2. The offences described in Schedule 2 include:
D. VICTORIA - BAIL ACT 1977
Section 4
(2) Nothwithstanding the generality of the provisions of subsection (1) a court shall refuse bail -
(a) in the case of a person charged with treason or murder except in accordance with section 13;
(aa) in the case of a person charged with -
(i) an offence of trafficking in relation to a commercial quantity of a drug of dependence under section 71 of the Drugs of Poisons and Controlled Substances Act 1981 or an offence of cultivating a narcotic plant under section 72 of that Act in circumstances where the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that narcotic plant or an offence of conspiring to commit either of those offences under section 78(1) of that Act; or
(ii) an offence under section 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth (as amended and in force for the time being) in relation to a commercial or trafficable quantity of narcotic goods within the meaning of that Act - unless the court is satisfied exceptional circumstances exist which justify the grant of bail;
(b) if the accused person is in custody pursuant to the sentence of a court for some other cause;
(c) if the accused is in custody for failing to answer bail unless the accused person satisfies the court that the failure was due to causes beyond his control;
(d) if the court is satisfied -
(i) that there is an unacceptable risk that the accused would if released on bail:
- would fail to surrender himself into custody in answer to his bail
- commit an offence whilst on bail
- endanger the safety or welfare of members of the public; or
- interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
(ii) (deleted)
(iii) that it has not been practicable to obtain sufficient information for the purpose of deciding any question referred to in this sub-section for want of time since the institution of proceedings against him
[Note sub-section (3) as to the considerations
to be applied in relation to sub section (2)(d)(i) above]
(4) Where the accused person is charged -
(a) with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence;
(b) with an offence against section 21A(1) of the Crimes Act 1958 (stalking) and -
(i) the accused has within the preceding 10 years been convicted or found guilty of an offence against that section in relation to any person or an offence in the course of committing which he or she used or threatened to use violence against any person; or
(ii) the court is satisfied that the accused person on a separate occasion used or threatened to use violence against the person whom he or she is alleged to have stalked, whether or not the accused person has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence; or
(ba) with an offence against section 22 of the Crimes (Family Violence) Act 1987 of contravening an order in the course of committing which the accused person is alleged to have used or threatened to use violence and -
(i) the accused person has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which he or she used or threatened to use violence against any person; or
(ii) the court is satisfied that the accused person on a separate occasion used or threatened to use violence against the person who is the subject of the order , whether or not the accused person has been found guilty of, or charged with, an offence in connection with that use or threatened use of violence; or
(c) with an offence of aggravated burglary under section 77 of the Crimes Act 1958
or any other indictable offence in the course of committing which the accused person or any person acting in concert with the accused person is alleged to have used or threatened to use a firearm, offensive weapon, or explosive within the meaning of the said section 77; or
(ca) subject to sub-section (2)(aa), with an offence of trafficking in a drug of dependence under section 71 of the Drugs, Poisons and Controlled Substances Act 1981 or an offence of cultivating a narcotic plant under section 72 of that Act or an offence of conspiring to commit either of those offences under section 79(1) of that Act; or
(cb) subject to sub-section (2)(aa), with an offence under section 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth (as amended and in force for the time being) in relation to a commercial or trafficable quantity of narcotic goods within the meaning of that Act; or
(d) with an offence against this Act -
the court shall refuse bail unless the accused person shows cause why his detention in custody is not justified and in any such case where the court grants bail the court -
(i) if constituted by a judge or magistrate, shall include in the order a statement of reasons for making the order; or
(ii) in any other case, shall, as prescribed
by regulations record and transmit a statement of reasons for
making the order.
(5) In granting bail a court may impose
conditions in accordance with section 5.
4. The Commission considers that a presumption
against bail should be inserted in similar terms to ss.4(2) and
4(4) of the Bail Act 1977 (Victoria) reversing the presumption
in favour of bail at ss.7A, 8 and 8A of the Bail Act 1992
and placing the onus of proof on the accused.
5. The Commission proposes that in substitution
for ss. 8(2) of the Bail Act 1992, provisions in the following
terms be inserted:
(2) Nothwithstanding the provisions of subsection (1) where the accused person -
(a) is charged with;
(i) treason or murder; or
(ii) any offence in the course of committing which the accused person is alleged to have used or threatened to use violence with a weapon; or
(iii) an indictable offence that is alleged to have been committed while he was at large or on bail awaiting trial for another indictable offence;or
(iv) contravening a protection order or restraining order in the course of committing which the accused person is alleged to have used or threatened to use violence and the accused person has within the preceding 12 months been convicted or found guilty of an offence in the course of committing which he or she used or threatened to use violence against any person; or
(v) an offence of trafficking in relation to a commercial quantity of a drug of dependence in circumstances where the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that narcotic plant or an offence of conspiring to commit either of those offences; or
(vi) an offence under section 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth (as amended and in force for the time being) in relation to a commercial quantity of narcotic goods within the meaning of that Act - unless the court is satisfied exceptional circumstances exist which justify the grant of bail;
(b) is in custody pursuant to the sentence of a court for some other cause;
(c) is charged with an offence against this Act or is in custody for failing to answer bail unless the accused person satisfies the court that the failure was due to causes beyond his control;
the court shall refuse bail unless the accused person shows cause why his detention in custody is not justified and in any such case where the court grants bail the court -
(i) if constituted by a judge or magistrate, shall include in the order a statement of reasons for making the order; or
(ii) in any other case, shall, as prescribed by regulations record and transmit a statement of reasons for making the order.
(3) In granting bail a court may impose conditions in accordance with sections 25 or 26.
(4) In sub section (2) -
`violence' means facts that establish an offence against the person.
[Note: It is intended by this definition
to exclude harassing and intimidating conduct which given the
difficulty of proving should not affect the presumption in favour
of bail.]
[Note: Any reforms in the foregoing terms need to be assessed against the impact upon available remand and prison facilities and associated costs]
6.
Section 23 of the Children's Services Act 1986 provides
that except as otherwise
expressly provided by this Act, Part IV of the Children's Services
Act 1986 does not affect the operation of the common
law or any other law in force in the Territory. In the absence
of any provisions in the Children's Services Act 1986 relating
to bail (note, however, s.38 where bail is not granted to a child).
The Bail Act 1992 represents a complete code in relation
to bail for persons who have not attained the age of 18 years.
7. The Commission considers that the provisions relating to bail at ss.23 and 26 of the Bail Act 1992 should be consolidated and relocated into a separate division relating to young persons. Section 23 of the Bail Act 1992 provides that in making a determination regarding the grant of bail to an accused person who is a young person, a court or an authorised officer shall have regard to the following matters, so far as they are ascertainable:
(a) the matters referred to in paragraphs 22 (1) (a), (b) and (c);
(b) the matters referred to in section 5 of the Children's Services Act 1986;
(c) where the determination is being made by
a court and a report has been furnished to the court under section
162 of the Children's Services Act 1986 in respect of the
young person - the contents of that report.
8. Subsection 5(4) of the Children's Services
Act 1986 requires a court or an authorised person to
regard the best interests of the young person as the paramount
consideration. The Commission considers that this obligation is
in conflict with the broader criteria to be applied in relation
to the grant of bail and should be removed. The `best interests'
of a young person should not assume paramountcy over the criteria
to be applied in relation to bail or the principles applicable
to the application of the criminal law.
9. The Commission considers that
the recommendations at paragraphs 1, 2, 4 and 5 above relating
to bail for minor offences and for offences other than minor offences
at ss.7, 7A and 8 of the Bail Act 1992 should apply equally
to young persons.
10. The Commission also considers that the inability of the court to impose conditions in the circumstances to which ss.26(3) refers is unnecessary as is the obligation to consider in sequence the matters detailed at ss.25(1). As ss.26(1) requires the court to have regard to ss. 5(1) and 5(3) of the Children's Services Act 1986 in determining the conditions that may be imposed on the grant of a bail to a child, any limits upon the discretion of the court or an authorised officer imposed by ss.26(2) and 26(3) should be removed.
11. The Commission considers that the provisions relating to bail at ss.23A and 27A of the Bail Act 1992 should be consolidated and relocated into a separate division relating to victims. The Commission also considers that the criteria for the grant of bail to adults and children at ss.22 and 23 of the Bail Act 1992 should be amended to give more weight to the protection of victims. The preferred model is detailed in paragraph 32(1)(b) of the Bail Act 1978 (NSW) which provides that consideration should be given to the protection of:
(a) any person against whom it is alleged the offence was committed; and
(b) close relatives of that person; and
(c) any other person considered to be in need
of protection due to the circumstances of the case.
12. The Commission considers that the notice
to the victim of a bail decision to which s.46A of the Bail
Act 1992 refers should include notice of the courts capacity
to revoke or vary bail pursuant to paragraph 19(1)(b) of the Bail
Act 1982 on the application of the crown or the complainant
as recommended at paragraph 32 below.
13. The Report of the Community Law Reform Committee relating to `Street Offences' recommended that the Bail Act 1992 should apply where a person has been arrested to avert a possible breach of the peace. Bail should require the arrested person to appear before the Court as soon as practicable.. The Commission proposes that where a person has been arrested to avert a possible breach of the peace and a police officer has not unconditionally released or administered a formal caution to that person (which may be given in antecedence for any subsequent offence) the police officer should either:
(a) grant bail requiring an appearance before the court as soon as practicable (not longer than 48 hours):
(i) on condition that the arrested person keep the peace; and/or
(ii) on such other conditions as may be appropriate in the circumstances; or
(b) take the person before the court as soon
as practicable.
14. The circumstances under which conditions
of bail may be imposed to facilitate medical and/or other treatment
in some Australian jurisdictions are detailed hereunder:
NEW SOUTH WALES
- Mental Health (Criminal Procedure)
Act 1990
PART 3 SUMMARY PROCEEDINGS BEFORE A MAGISTRATE
RELATING TO PERSONS AFFECTED BY MENTAL DISORDERS
Application
31. (1) This Part applies to criminal proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a Magistrate, but does not apply to committal proceedings.
(2) Sections 32 and 33 apply
to the condition of a defendant as at the time when a Magistrate
considers whether to apply the relevant section to the defendant.
Persons suffering from mental illness or condition
32. (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is developmentally disabled, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990; and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,
the Magistrate may take the action set out in subsection (2) or (3).
(2) The Magistrate may do any one or more of the following:
(a) adjourn the proceedings;
(b) grant the defendant bail in accordance with the Bail Act 1978;
(c) make any other order that the Magistrate considers appropriate.
(3) The Magistrate may dismiss the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions; or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both; or
(c) unconditionally.
(4) A decision under this
section to dismiss charges against a defendant does not constitute
a finding that the charges against the defendant are proven or
otherwise.
Mentally ill persons
33. (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate that the defendant is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, the Magistrate (without derogating from any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 or otherwise):
(a) may order that the defendant be taken by a police officer to, and detained in, a hospital for assessment; or
(b) may order that the defendant be taken by a police officer to, and detained in, a hospital for assessment and that, if the defendant is found on assessment at the hospital not to be a mentally ill person or mentally disordered person, the person be brought by a police officer back before the court; or
(c) may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person.
(2) If a defendant is dealt with at the commencement or at any time during the course of the hearing of proceedings before a Magistrate in accordance with this section, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is to be taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge.
(3) If a defendant is brought before a Magistrate to be further dealt with in relation to a charge as referred to in subsection (2), the Magistrate must, in dealing with the charge, take account of any period during which the defendant was in a hospital as a consequence of an order made under this section.
(4) The fact that charges are to be taken to have been dismissed under subsection (2) does not constitute a finding that the charges against the defendant are proven or otherwise.
(5) The regulations may prescribe
the form of an order under this section.
Disqualification of Magistrate
34. (1) If:
(a) a Magistrate has inquired into whether a defendant should be dealt with under section 32 or 33; and
(b) the Magistrate has decided not to so deal with the defendant,
the Magistrate must, on the application of the defendant, disqualify himself or herself from further hearing the proceedings concerned.
(2) An application may be made by a defendant under this section only if:
(a) except as provided by paragraph (b), the question whether the defendant should be dealt with under section 32 or 33 has not been previously inquired into by another Magistrate in the same proceedings; or
(b) in the case of proceedings
in which another Magistrate has previously inquired into whether
the defendant should be dealt with under section 32 or 33, the
Magistrate before whom the proceedings are being heard considers
that it should, because of the circumstances of the case, be permitted
to be made.
Transfer of prisoners
35. (1) This section applies to a person who is awaiting committal for trial or trial for an offence or summary disposal of the person's case.
(2) If it appears to a Magistrate that it may be appropriate to transfer a person to whom this section applies from prison to a hospital under section 97 or 98 of the Mental Health Act 1990, the Magistrate may make an order directing:
(a) that the defendant be examined by 2 medical practitioners, one of whom is a psychiatrist; and
(b) that, if appropriate, the relevant certificates be furnished to the Chief Health Officer under section 97 or 98 of the Mental Health Act 1990; and
(c) that the Director of the
Prison Medical Service notify the Magistrate of the action, if
any, taken under section 97 or 98 of the Mental Health Act 1990.
Means by which Magistrate may be informed
36. For the purposes of this
Part, a Magistrate may inform himself or herself as the Magistrate
thinks fit, but not so as to require a defendant to incriminate
himself or herself.
QUEENSLAND - BAIL ACT 1980
Section 11
(3) If a court grants bail on an adjournment of a hearing or while the defendant is awaiting trial considers an investigation ought to be made into the defendants physical or mental condition, the bail may be made subject to a condition that the defendant undergo medical examination -
(a) by a doctor at a specified institution or place (other than a security patients hospital under the Mental Health Act 1974); or
(b) by a specified doctor.
(3A) However, bail may be made subject to
a condition that the defendant undergo a medical examination only
if the proposed examination is an examination the defendant could
lawfully be required to undergo if the defendant remained in custody.
(3B) If bail is subject to a condition mentioned in sub section (3), the court must arrange for a statement containing the following matters to be given to the institution, place or doctor -
(a) reasons for the investigation;
(b) the information before the court about
the defendant's physical or mental condition.
WESTERN AUSTRALIA - BAIL ACT 1982
Clause 2 Schedule 1
(3) Where a judicial officer -
(a) grants bail upon the adjournment of a hearing or trial or while the defendant is awaiting a hearing or trial and the judicial officer is of opinion that an examination ought to be made of the physical or mental condition of the defendant; or
(b) makes an order in relation to a defendant under section 36(1)(a) of the Mental Health Act 1962,
he may under sub clause (1), impose any
condition which he considers to be desirable for the purpose of
ensuring that the defendant undergoes such an examination by a
medical practitioner or psychiatrist.
(4) Where a judicial officer is of the opinion
that a defendant is suffering from alcohol or drug abuse and is
in need of care or treatment either on that account, or to enable
him to be prepared for his trial, the judicial officer may, under
sub clause (1), impose any condition which he considers desirable
for the purpose of ensuring that the defendant receives such care
or treatment, including that he lives in, or from time to time
attends at a specified institution or place in order to receive
such care or treatment.
(5) Where a judicial officer imposes any
condition for a purpose mentioned in sub clause (3) or (4), he
shall cause to be sent to the medical practitioner, psychiatrist,
institution, or place a statement of the reasons for the imposition
of the condition.
(6) Where a condition is imposed under this
clause that a defendant shall reside in premises established for
the accommodation of persons to whom bail has been granted, that
condition shall be deemed to include a further condition that
the defendant will comply with such rules as are for the time
being laid down for the maintenance of the good order of those
premises, whether such rules are made under section 67 or by the
authority responsible for the good order of the premises.
15. The Bail Act 1992 does not contain
any provisions which facilitate treatment for persons suffering
`mental dysfunction' or which facilitate an assessment where a
matter is referred to the Mental Health Tribunal. While the Tribunal
must obtain an assessment before making any treatment order (ss.16(1)
Mental Health (Treatment and Care) Act 1994) and may make
orders facilitating any such assessment (ss.17 and 18 Mental
Health (Treatment and Care) Act 1994) the capacity of the
Tribunal to make such orders arises following referral by a court
creating a hiatus in the period between the order of the court
referring the matter to the Tribunal and the making of the assessment
order by the Tribunal. While the issue may be addressed by the
imposition of conditions pursuant to ss.25 or 26 of the Bail
Act 1992, an issue arises as to whether a condition of bail
can impose detention or treatment on an accused person in the
absence of any determination as to the desirability of any such
detention or treatment.
16. While definitional issues relating to `mental illness' and `mental dysfunction' require further consideration, the Commission considers that provisions replicating the scheme of Part 3 of the Mental Health (Criminal Procedure) Act 1990 should be inserted into the Bail Act 1992:
(a) to apply in relation to committal proceedings in addition to offences triable summarily before a Magistrate; and
(b) providing that section 33 be expressed to apply;
(i) if the Court is prima facie satisfied that the person is mentally dysfunctional; and that-
- the person's health or safety is, or is likely to be, substantially at risk; or
- the person is, or is likely to be, a danger to the community.
[Note: The foregoing is consistent with the criteria to be applied by the Mental Health Tribunal for the purpose of making an assessment order (refer s.16 Mental Health (Treatment and Care) Act 1994)];
or
(ii) where the accused is required to submit to the jurisdiction of the Mental Health Tribunal pursuant to an order under s.83A of the Children's Services Act 1986, Part XIA of the Crimes Ac 1900 or Part IV of the Children's Services Act 1986.
(c) providing that the court should have regard to any conditions imposed by the Mental Health Tribunal or any conditions which may be imposed by the Mental Health Tribunal pursuant to the Mental Health Act 1995.
17. The Commission recommends that the Government examine the feasibility of enabling a condition of bail to be imposed whereby an accused while on bail must remain at and not leave the place specified, until the time specified except:
18. The capacity to impose such a condition
is available in Western Australia (refer Part VIA and Part D Clause
3 of Schedule 31 of the Bail Act 1982 (WA)). An alternative
method would be to enable a condition to be imposed whereby the
accused agrees to place herself/himself under the supervision
of an officer of correctional services and to obey either the
lawful directions of that officer, or in relation to any other
matter stipulated by the bail authority. A legislative model for
this approach can be found at s.11 of the Bail Act 1985
(South Australia).
19. Provisions relating to bail in the Magistrates
Court Act 1930 and the Supreme Court Act 1933 should
be consolidated into the Bail Act 1992. Relevant provisions
are:
SUPREME COURT ACT 1933
PART VII-TRIAL ON INDICTMENT
Prosecution of indictable offences
68(3) Upon an information being filed without examination or commitment for trial, the Court may-
(a) cause a summons to be issued to the accused person to appear at the time and place specified in the summons and there to answer the charge specified in the information; or
(b) issue a warrant for the
arrest of the accused person and hold him or her in custody or
admit him or her to bail.
MAGISTRATES COURT ACT 1930
Remand of defendant
70(1) If-
(a) because of the absence of witnesses; or
(b) for any other reasonable cause;
it becomes necessary or advisable to defer the hearing of proceedings for an indictable offence, the Court may adjourn the hearing and may by warrant or, if the period of remand is not to exceed 3 days, by order made orally, remand the defendant into the custody of the Administrator for such period (not exceeding 15 days at any one time) as the Court considers reasonable.
(2) A warrant or order under subsection (1) shall direct the Administrator to-
(a)keep the defendant in custody for the specified period; and
(b)bring the defendant before the Court at the specified time and place for the hearing.
Bringing up during remand
72. The Court may order the defendant to be brought before it at any time before the expiration of the time for which he or she was so remanded, and the officer in whose custody he or she then is shall duly obey the order.
Bail of defendant during examination
73. Instead of detaining the defendant in custody during the period for which he or she is remanded, the Magistrate before whom he or she appears or is brought may admit the defendant to bail in accordance with the provisions of the Bail Act 1992.'
Particular cases may be adjourned
84(1) Where, before or during the hearing or further hearing of any information, it appears advisable, the Magistrate may, in his or her discretion, adjourn the hearing or further hearing to a certain time and place to be then appointed and stated in the presence and hearing of the parties or the legal practitioners or other persons appearing for them.
(2) The Magistrate may, in the meantime, suffer the defendant to go at large or commit him or her to gaol or a place of security, or to such other safe custody as the Magistrate thinks fit, or may admit the defendant to bail in accordance with the provisions of the Bail Act 1992.
Power of Court or Judge to admit to bail
226(1) Where any person committed to gaol by virtue of a summary conviction or order is brought up by writ of habeas corpus, and the Supreme Court or the Judge postpones the final decision of the case, the Supreme Court or the Judge may admit the person to bail in accordance with the provisions of the Bail Act 1992.
(2) If the judgment of the Supreme Court or the Judge is against any person so brought up, the Supreme Court or the Judge may remand him or her to his or her former custody, there to serve the rest of the term for which he or she was committed.
20. The Commission considers
that the time limit of 15 days imposed at ss.70(1) of the Magistrates
Court Act 1930 should apply only to persons in custody who
having been granted bail and who are unable to satisfy the conditions
imposed. Any remand of a person in custody should be for a specified
period fixed by the court.
21. Provisions relating to recognizance requiring witnesses to appear before a court should be substituted for provisions to be inserted into the Bail Act 1992 requiring witnesses to enter into bail to secure their appearance. In the Magistrates Court relevant provisions are detailed at sections 103 - 105 of the Magistrates Court Act 1930 which provide:
Recognizance of witnesses etc.
103(1) The Court may bind by recognizance every person whose written statement was admitted in evidence under section 90AA, or who was examined before it, to appear at the court at which the defendant is to be tried, and then and there to give evidence against the defendant.
(2) The recognizance shall particularly specify the profession, trade, or calling of every person who enters into it, together with his or her full name and place of residence.
Notice to witnesses
104. Every such recognizance shall be duly acknowledged by every person who enters into it, and shall be subscribed by the Magistrate before whom it is acknowledged, and a notice thereof signed by the Magistrate shall at the same time be given to every person bound thereby.
Court may commit refractory witness
105(1) If a witness refuses to enter into the recognizance, the Court may by warrant commit him or her to gaol or to a remand centre, there to be safely kept until after the trial of the defendant, unless in the meantime the witness duly enters into the recognizance before a Magistrate.
(2) If afterwards, the defendant
is not committed for trial for the offence with which he or she
is charged, or if the duly appointed officer declines to file
an information against the defendant for the offence, any Magistrate,
upon being duly informed of the fact, may, by his or her order
in that behalf, order and direct the keeper of the goal or Superintendent
of the remand centre, as the case requires where the witness is
in custody to discharge him or her from custody, and the keeper
or Superintendent shall thereupon forthwith discharge him or her
accordingly, as to that warrant.
22. The Commission considers that in lieu of
recognizance, a witness should be released or required to appear
pursuant to an undertaking under the Bail Act 1992. Accordingly,
the foregoing provisions and additional provisions relating to
the release of witnesses on bail should be inserted into the Bail
Act 1992.
23. The Commission recommends that provisions be inserted which enable the court to give directions as to the manner in which it receives evidence and the manner by which the accused may participate in proceedings. In determining what conditions may be appropriate the court should be required to consider:
(a) the capacity of the accused to instruct solicitors;
(b) the conduct of the accused
(c) the capacity of the accused to give evidence; and
(d) a presumption in favour of the accused physically appearing before the court unless;
(i) the accused person is legally represented; and
(ii) the accused person expresses a desire
not to attend before the court.
24. The Commission considers that the accused should physically appear before the court on any occasion where the accused is to be formally charged with an offence. The foregoing may be included as criteria by which an accused person may be excused from attendance before the court pursuant to s.30 of the Bail Act 1930.
[Note s.30 of the Bail Act 1992]
25. For the purposes of ss.25 (2) of the Bail
Act 1992, where an accused person is required, as a condition
of bail, to report periodically or at specified times or at a
specified place, the police officer or person to whom the accused
person is required to report should have the power to request
that the accused person provide proof of identity.
26. Provision should be inserted which enables
a bail undertaking by an accused person or their surety or sureties
to be executed before any Registrar or Deputy Registrar of a Court
of another State or Territory. Similarly, a bail undertaking by
a surety who is out of Australia may be executed before a consular
official in an Australian mission overseas. Where a bail undertaking
is executed by a surety who is not present in Australia there
should be a presumption that the amount specified be secured by
the payment of cash to the consular official as the agent of the
Court. To facilitate the lodgment of any security, provision should
be made for the payment of money by credit card or the lodgment
of a bond. The lodgment of a bond could be effected in the same
way as lodgment of a bond or security pursuant to Order 26 of
the Supreme Court Rules or s.85 of the Magistrates Court
(Civil Jurisdiction) Act 1982.
27. For the purposes of s.22 of the Bail
Act 1982 the court should be required to have regard to any
evidence which suggests that the charges against the accused are
malicious or otherwise frivolous or vexatious.
28. A failure to comply with a bail undertaking
is an offence In all Australian jurisdictions. In some Australian
jurisdictions the court may issue a warrant for the arrest of
a person who has failed to comply with a term or condition of
his/her bail. In Queensland and Victoria the police may arrest
a person without a warrant where there are reasonable grounds
to believe that the person is likely to breach a term or condition
of his/her bail. Relevant provisions are detailed hereunder.
QUEENSLAND - BAIL ACT 1980
Section 28A
(1) where a defendant has been charged with an offence and has been -
(a) released on bail in accordance with section 7(1)(b) or by a Magistrates Court or a Children's Court or by any justice or justices conducting an examination of witnesses in relation to an indictable offence on the defendant entering into an undertaking; or
(b) released on bail on the defendant making a deposit of money pursuant to section 14 or 14A; or
(c) permitted to go at large without bail;
fails to surrender into custody the court
before which the defendant is required to appear may issue a warrant
for the apprehension of the defendant.
(2) Where a defendant for whose apprehension a warrant has been issued under sub section (1) -
(a) surrenders into the custody of the court that issued the warrant as soon as is practicable after the time for the time being appointed for the defendant to do so; and
(b) satisfies the court that the failure to surrender into custody was due to reasonable cause;
the court may withdraw and cancel the warrant.
(3) A warrant issued under this section -
(a) shall name or otherwise describe the defendant against whom it is issued; and
(b) shall set out the court into the custody of which the defendant failed to surrender and the time and place of that failure; and
(c) shall order the police officers to whom
it is directed to apprehend the defendant against whom it is issued
and cause the defendant to be brought before a Magistrates Court
or, as the case may be, Children's Court to be dealt with according
to law.
(4) A court shall not issue a warrant under subsection (1) -
(a) where the defendant was released on bail or permitted to go at large without bail to appear at a time and place to be determined; or
(b) where the hearing was adjourned in the defendant's absence and the defendant was not represented by counsel or solicitor;
unless it is satisfied that -
(c) the defendant cannot be found, has absconded or is likely to abscond; or
(d) reasonable notice of the time and place
so determined or, as the case may be, the time to which the hearing
was adjourned has been given to the defendant.
Section 28B
A warrant issued under section 28 or 28A(1)(a)
to apprehend a defendant for the reason that the defendant failed
to surrender into custody shall be sufficient authority for a
police officer to whom it is directed to apprehend the defendant
upon any other charge in respect of which the defendant failed
to surrender into custody at the same court, time and place or
sittings as the defendant was required to surrender into custody
on the charge in respect of which the warrant was issued.
Section 29
(1) A police officer may apprehend without warrant a defendant who has been released on bail -
(a) if the police officer believes on reasonable grounds -
(i) that the defendant is likely to break the condition for the defendant's appearance or any other condition of the undertaking on which the defendant was granted bail or that the defendant is breaking or has broken any such condition; or
(ii) that any surety for the defendant's appearance is dead; or
(iii) that for any reason the security is no longer sufficient; or
(b) if the police officer is notified in
writing by a surety for the defendant that the surety believes
that the defendant is likely to break the condition for the defendant's
appearance and for that reason the surety wishes to be relieved
of the surety's obligations as a surety.
[Note also section 29A as to the procedure
in respect of defendants apprehended]
VICTORIA - BAIL ACT 1977
Section 24
(1) Any member of the police force may without warrant arrest any person who has been released on bail -
(a) if the member of the police force has reasonable grounds for believing that the person is likely to break the condition for his appearance or any other condition on which he was admitted to bail, or has reasonable cause to suspect that the person is breaking or has broken any such other condition;
(b) if the member of the police force is notified in writing by any surety for the person that the surety believes that the person is likely to break the condition for his appearance and for that reason the surety wishes to be relieved of his obligations as a surety; or
(c) if the member of the police force has
reasonable grounds for believing that any surety is dead, or that
for any reason the security is no longer sufficient.
(2) A person arrested under subsection (1) -
(a) shall be brought before a bail justice as soon as practicable after his arrest and in any event within 24 hours thereafter; or
(b) where he is arrested within 24 hours
before the time at which he is bound by a condition of his bail
to appear before a court - shall be brought before that court
at that time.
(3) Where a person is brought before a bail justice or court pursuant to the provisions of paragraph (a) or paragraph (b) the bail justice or court -
(a) if of the opinion that the person has broken or is likely to break a condition of the undertaking on which the person was admitted to bail - may revoke the bail and commit the person to prison with a direction to the officer in charge of the prison -
(i) if the direction is given by a court, that the person be brought before the court at the time when the person is required by the conditions of bail to appear; or
(ii) if the direction is given by a bail justice, that the person be brought before
the Magistrates Court on a date, specified in the direction, as soon as practicable but not later than 8 clear days after the direction is given -
or release the person on his or her own undertaking with or without sureties; or
(b) if not of that opinion - shall release
the person on his or her original undertaking.
(4) If a bail justice or court refuses to
revoke bail under subsection (3)(a), the Director of Public Prosecutions,
if satisfied that an appeal should be brought in the public interest,
may appeal to the Supreme Court in the same manner as provided
for in section 18A.
(5) If the bail of a person is revoked under
subsection (3), the person may apply under section 18(6B) for
an order granting bail.
NORTHERN TERRITORY - BAIL ACT
Section 38
(1) Where a member of the of the Police Force believes on reasonable grounds that a person has been released on bail has, while at liberty on bail, failed to comply with, or is, while at liberty on bail, about to fail to comply with, his bail undertaking or an agreement entered into by him pursuant to a bail condition -
(a) a police officer may arrest the person without warrant and take him as soon as practicable before a court; or
(b) a magistrate or justice may -
(i) issue a warrant to apprehend the person and bring him before a court; or
(ii) issue a summons for his appearance
before a court.
Section 39
Where a person fails to appear before a
court in accordance with his bail undertaking, the court may issue
a warrant to apprehend the person and bring him before the court.
WESTERN AUSTRALIA - BAIL ACT 1982
Section 56
Where at any time after that specified in
his bail undertaking for his appearance a defendant has failed
to comply with the requirements of his bail undertaking mentioned
in section 28(2)(a) or (b), the court before which he was required
to appear may issue a warrant to arrest the defendant and bring
him before that court or a court of like jurisdiction.
SOUTH AUSTRALIA - BAIL ACT 1985
Section 18
(1) Where it appears to a court or justice that a person released on bail has contravened or failed to comply with a term or condition of a bail agreement it may -
(a) cancel the right of that person to be at liberty in pursuance of the agreement; and
(b) if it appears necessary or desirable
to do so - issue a warrant for his arrest.
(2) A member of the police force may arrest without warrant a person released on bail if he has reasonable grounds for believing that the person -
(a) intends to abscond;
(b) is contravening or failing to comply with a bail agreement; or
(c) has contravened or failed to comply
with a bail agreement.
29. The Commission considers that in addition to the offence for breach of a condition of bail at s.49 of the Bail Act 1992, provisions should be inserted to enable the court to issue a warrant for the arrest of any person who has failed to comply with a term or condition of his/her bail. The Commission considers also:
(a) that police should be given the power to arrest a person without a warrant where there are reasonable grounds to believe that the person is likely to breach a term or condition of his/her bail; and
(b) that the court should be given the power
to issue a warrant for the arrest of a person where the court
is of the opinion that it is necessary or advisable, in the interests
of justice, for the terms or conditions of bail relating to that
person to be amended or supplemented.
30. To give effect to the recommendations detailed at paragraph 29 above, the Commission recommends:
(a) that the authority of police to arrest without warrant for breach of a bail condition detailed at ss.349Z and 349ZA of the Crimes Act 1900 should be relocated into the Bail Act 1992 and consolidated with provisions in similar terms to ss.28B, 29 and 29A of the Bail Act 1980 (Queensland) and s.24 of the Bail Act 1977 (Victoria);
(b) that where a person has been arrested for a breach or likely breach of a bail condition that person is to be taken before a Judge or Magistrate as soon as practicable with any entitlement to bail to be by way of a re- hearing of the original bail application. The court should also be able to receive evidence of the alleged breach to consider whether or not bail should again be granted and the terms and conditions to be imposed; and
(c) that provisions be inserted providing that:
(i) any
- alleged offence relating to a breach of a condition of bail or for failing to answer bail; or
- arising from the arrest of a person for a breach or likely breach of a condition of bail
should be dealt with by the court which granted the bail; and
(ii) that the Registrar may enforce any breach
of a bail undertaking as the informant.
31. Provisions should be inserted which clarify the effect of a bail forfeiture and the liability of any surety as a consequence. The Commission considers that s.37 of the Bail Act 1992 should be amended to provide that an order forfeiting bail is to have effect as if it were a judgment of the Supreme Court or the Magistrates Court (depending upon the court in which the grant of bail was made) 28 days after service of a notice upon the surety advising of the order of the court forfeiting the surety's security. The notice should advise the surety that they may apply to the court to set aside the order of forfeiture. Any such application should be made within 28 days of service of the notice upon the surety. In determining whether to order the reversal of any order forfeiting the surety's security, the court should have regard to:
(a) action taken by the surety to ensure compliance by the accused person with the conditions of bail imposed;
(b) the provision of information relating to the accused person's whereabouts; and
(c) whether the person has applied to the court
to be released from their obligations.
32. The Commission considers also that notice of the matters detailed at paragraph 31 above be included in the the bail undertaking signed by the surety (refer to the forms at Part D of this Report).
33. Further to the capacity at paragraph 19(1)(b)
of the Bail Act 1992 to enlarge, vary or revoke bail, the
court should be given the capacity to issue a warrant for the
arrest of a person where it is of the opinion that it is necessary
or advisable, in the interests of justice, for the terms or conditions
of bail relating to that person to be amended or supplemented
(note in this regard ss.25 and 26 of the Bail Act 1977
(Victoria)). The Commission also considers that a procedure for
the revocation or variation of bail should be prescribed. In this
regard, the Commission considers that s.30 of the Bail Act
1980 (Queensland) provides an effective legislative precedent.
That section enables a complainant or the prosecution to seek,
vary or revoke bail and provides that:
30(1) Bail granted to a defendant on an undertaking may be varied or revoked, upon application of the Crown or, as the case may be, complainant, by: -
(a) the court that granted the bail; or
(b) the court before which an indictment has been presented; or
(c) the Supreme Court;
if the court is of the opinion that it is
necessary or desirable in the interests of justice to do so.
(2) An application under subsection (1) may be made exparte -
(a) after notice of intention to make the application has been given to the defendant and the defenadant's surety or sureties; or
(b) without giving notice pursuant to paragraph (a) if the defendant -
(i) has absconded or if the court is satisfied that the defendant is likely to abscond; or
(ii) has broken, or if the court is satisfied
that the defendant is likely to break, a condition of the defendant's
undertaking.
(3) If an application under subsection (1) is made in the manner permitted under subsection (2)(b), the court may -
(a) order that notice of the application be given to the defendant and the defendant's surety or sureties notifying that if the defendant fails to surrender into custody in accordance with the notice a warrant may issue forthwith for the apprehension of the defendant; or
(b) forthwith issue a warrant to apprehend
the defendant and bring the defendant before the court to show
cause why the defendant's bail should not be varied or revoked.
(4) If, on the date and at the time and place specified in a notice given pursuant to subsection (2)(a) or (3)(a) the defendant -
(a) fails to surrender into custody, the court may issue a warrant for the defendant's apprehension;
(b) surrenders into custody and fails to satisfy the court that it is not necessary or desirable in the interests of justice that the defendant's bail be varied or revoked the court may -
(i) vary the bail in such manner as it thinks fit; or
(ii) revoke the bail;
(c) surrenders into custody and satisfies
the court that it is not necessary or desirable in the interests
of justice that the defendant's bail be varied or revoked the
court may order that the defendant be released from custody on
the defendant's original undertaking.
(5) A surety or sureties to whom notice is given under subsection (2)(a) or (3)(a) shall be entitled to appear at the hearing of the application and give evidence and the court ma, if it thinks fit, adjourn the hearing to enable the surety or sureties to do so.
34. Section 25 of the Bail Act 1992
should be amended to define an `acceptable person' as including
a person not present within the Territory who is prepared for
the purposes of paragraphs 25(1)(b) - (e) to provide an acknowledgment
in writing to a Registrar or Deputy Registrar of a court of another
State or Territory. (Note: this recommendation is consistent with
the reforms proposed at paragraph 17 above).
35. For the purposes of paragraph 25(1)(e)
of the Bail Act 1992 `prescribed means of payment ' should
be defined by instrument to include electronic funds transfer
(EFT), bank guarantee, credit card or bond.
36. The existing regime of appearances for all bail continuations and extensions should be preserved. The Commission has considered the system that operates in Victoria relating to Bail Justices and prefers the involvement of Judicial Officers so as to enable proper consideration of the application and any impediments that may exist to a speedy trial. The Commission recommends that following indictment, all matters relating to bail should be dealt with by the Supreme Court or such other Court as may be seized of the matter by reason of the filing of an appeal.
Form 1: Bail Undertaking (without surety) -
refer Attacment D
Form 2: Bail Undertaking (with surety) - refer
Attachment E
Form 3: Bail Undertaking (without security
or monetary obligations) - refer Attachment F
Form 4: Notice of continuation of bail - refer
Attachment G
ATTACHMENT A
AUSTRALIAN CAPITAL TERRITORY GOVERNMENT
A.C.T. LAW REFORM COMMISSION
Reference
I, Gary Humphries MLA, Attorney-General for
the Australian Capital Territory, having regard to community concern
about the application of the Bail Act 1992, refer the following
matter to the ACT Law Reform Commission:
In undertaking this reference, the Commission
will consult with, and have regard for, views of members of the
community.
Gary Humphries MLA
Attorney-General
30 December 1998
ATTACHMENT B
A.C.T. LAW REFORM COMMISSION
CRIMINAL LAW CONSULTATIVE COMMITTEE
MEMBERS
Chair
Justice Ken Crispin
ACT Supreme Court
Ron Cahill
Chief Magistrate
Richard Refshauge
Director of Public Prosecutions
Grant Brady
Law Society of the ACT
John Seymour
Australian National University
Professor David Hambly
Australian National University
Chris Staniforth
Director, Legal Aid Office (ACT)
Ben Salmon QC
Bar Association of the ACT
Commander Alan Castles
Australian Federal Police
James Ryan
Director, ACT Corrective Services
ATTACHMENT C