Review of Bail Act
1978 (NSW)
Criminal Law Review
NSW Department of Justice
and Attorney General
October 2010
At its heart, the Act is a complex risk assessment
scheme balancing three broad principles:
1. The presumption of innocence: bail is not intended
to be a form of punishment, nor is a bail
determination a judgment of guilt or innocence.
2. Flight risks and Court attendance: in order for the
criminal justice system tofunction effectively, accused
people must turn up to Court on set dates and an
assessment must be made of the likelihood that a
person will flee.
3. Protection of the community: an assessment must
be made as to whether the accused may commit more
offences or interfere with the criminal justice process,
for example by interfering with witnesses or evidence,
or be a danger to someone else or to him or herself.
What is the purpose of
bail?
As noted in a 1998 NSW Parliamentary paper on
bail laws in NSW, there has been a tremendous
shift away from the original emphasis of bringing
the accused to trial, to an emphasis on protecting
the community from possible violent acts while
the accused is on bail3
3 As noted in Rachel Simpson’s, NSW Parliamentary Library Research paper, ‘Bail in NSW’, briefing paper No 25/97
1998.
The scheme applies to any offence heard in NSW,
whether it is against a Commonwealth or NSW
criminal law. An application for bail can be made:
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after charge and before the first appearance at
Court (Police bail);
during any adjournments before or after the start of
the hearing of the case;
between committal for trial or sentence, and
appearance in the District or Supreme Court;
between date of conviction and date of sentence;
during any period of the stay of execution of a
judgment or sentence, while waiting for the hearing
of an appeal; and in various other circumstances.
When is bail considered?
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Police are usually the first authority to consider
whether to release an arrested person on bail or
not. The rules applying to Police and Court bail
are essentially the same. A Police officer of the
rank of sergeant or above, or the officer who is
in charge of the Police station, is authorised to
grant bail as long as a Court has not already
decided that bail is to be refused in relation to a
particular charge or the requirement for bail
has already been dispensed with (s.17).
Police Bail
How bail works….
In addition to determining which classification an offence
falls within, the authorised officer or Court must then
consider further criteria as outlined in s.32 of the Act. The
criteria include:
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the probability of whether a person will appear in Court.
In this regard a Court can only consider: the person's
background and community ties; any previous failure to
appear; circumstances of the offence including seriousness
and severity of probable penalty;
the interests of the person, having regard to length of time
likely to be spent on remand and the conditions thereof.
the need of the person to be free to prepare for the
person’s appearance in Court or to obtain legal advice or
both.
whether the person is incapacitated by intoxication, injury
or drug use or in need of protection.
Additional criteria to be
considered
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the protection of the victim and their close relatives and any
other person considered to be in need of protection.
the protection and welfare of the community, having regard to
previous failure to observe a bail condition; likelihood of the
person interfering with evidence, witnesses or jurors and
likelihood that the person will commit an offence while on
bail.
the person is under the age of 18 years, or is an Aboriginal
person or a Torres Strait Islander, or has an intellectual
disability or is mentally ill, and any special needs of the
person arising from that fact.
the person is a person referred to in section 9B (3), the nature
of the person’s criminal history, having regard to the nature
and seriousness of any indictable offences of which the person
has been previously convicted, the number of any previous
such offences and the length of periods between those
offences.
Additional criteria to be
considered
If bail is granted, the Police officer, an authorised officer
or Court may impose conditions on the accused person
(as set out in s.36 & s.36A) for the purpose of promoting
further effective law enforcement, for the protection and
welfare of any specially affected person or the
community, or reducing the likelihood of future offences
being committed by promoting the treatment or
rehabilitation of an accused person (s.37(1)). Conditions
may not be imposed that are any more onerous for the
accused person than is required by the nature of the
offence or for the protection and welfare of any specially
affected person or by the circumstances of the accused
person (s.37(2)).
Bail may be granted unconditionally or
subject to limited conditions.
Sections 36(2), 36A, 36B and 37A set out the
conditions that may be imposed. They include
entering into an agreement to forfeit money,
observing certain conditions, attending
rehabilitation programs, not to associate with a
particular person, not to go to particular place
and surrendering a passport. The amendments in
relation to intervention programs were
introduced in response to the NSW Drug Summit
in 1999.
Bail may be granted unconditionally or
subject to limited conditions.
Police have the power to arrest someone if they have reasonable
grounds to believe that the person has failed to comply or is
about to fail to comply with a bail undertaking or condition
(s.50).
It is an offence to fail to appear at Court in accordance with a bail
undertaking with a maximum penalty equal to the maximum
penalty for the offence for which the accused failed to appear or
three years or 30 penalty units, whichever is the lesser. No
sentence of imprisonment imposed for this offence is to exceed 3
years (s.51). If a Court is satisfied that an accused has failed to
appear then the Court may order the forfeiture of any money
deposited or agreed to be forfeited (s.53A). An affected person
(for example the guarantor) may object to such an order (ss.53C
and 53D).
Failure to comply with bail
undertaking
Remand population in NSW
As of 30 June 2009 the adult remand population in NSW was 2608.7 The remand
population in NSW has been steadily rising since the 30 June 2000. This trend is
true for both the male and female remand population. New South Wales has the highest
number of unsentenced prisoners in Australia
.
In 2000, Ms Jacqueline Fitzgerald of the NSW Bureau of Crime
Statistics and Research (BOCSAR) undertook a study of the remand
population in NSW. Fitzgerald found there were several factors
contributing to the rise in the remand population:
⋅ the overall number of people appearing in the Local Courts
had increased;
⋅ there had been an increase in the number of persons
appearing for some offences with a high rate of bail refusal;
⋅ there were indications that Police and magistrates were
becoming less willing to grant bail;
⋅ Court delay had increased in the Higher Courts;
⋅ an increase in matters being dealt with summarily, and
⋅ the targeting of repeat offenders by NSW Police Force.
Fitzgerald, Jacqueline, Nov 2000. ‘Increases in the NSW
Remand Population’, Crime and Justice Statistics,
NSW Bureau of Crime Statistics and Research.
In August 2004, Fitzgerald completed another study on bail, this time
analysing the impact of the Bail Amendment (Repeat Offenders) Act
2002. This amendment removed the presumption in favour of bail for
various repeat offenders. Fitzgerald found that since the amendments
were introduced, the bail refusal rate for defendants appearing in
NSW Criminal Courts had increased by 7 per cent. The increase was
greatest among defendants targeted by the amendments i.e. those
with prior convictions, those appearing for an indictable offence and
those who had previously failed to appear.10 There is also evidence
that amendments to the Act have resulted in an increase in the
general remand population.
Fitzgerald J & Weatherburn D “The Bail Amendment (Repeat Offenders) Act 2002” Crime
& Justice Bulletin 83
BOCSAR August 2004.
The increase in the remand population in NSW has
been mirrored in other Australian jurisdictions. In
June 2010, there were 29,361 persons in full-time
custody in Australia, comprising of 22,535 sentenced
and 6,826 unsentenced prisoners. The Australian
Capital Territory and South Australia had the
highest proportions of unsentenced prisoners (43%
and 36% respectively). The lowest proportions of
unsentenced prisoners were recorded in Western
Australia and Victoria (17% and 19% respectively).
New South Wales had the highest number of
unsentenced persons in full-time custody, with 2,778
people, followed by Queensland with 1,215.14 The
total number of prisoners in Australia has increased
by around 20% between 1995 and 2006, but remand
numbers have jumped almost 150% over the same
period.
Remand population in Australia
Remanding a person in custody is a serious matter. Remandees
awaiting trial enjoy a presumption of innocence, yet they remain
incarcerated, often for months at a time. The decision to remand an
accused person in custody has consequences for both the individual
and the community. The financial and social consequences for
the accused include:
􀂂 being unable to care for children or other family members;
􀂂 if employed, losing their job;
􀂂 being deprived of their liberty and unable to participate in
ordinary life;
􀂂 difficulty in preparing their defence to the charge;
􀂂 incurring a stigma associated with being in prison, and
􀂂 if they are not found guilty of the charges, the hardship they have
suffered by being on remand cannot be redressed.
The consequences of remand
For the community there are also both financial and social
ramifications. Financially, remanding accused persons in custody
involve both the high cost of incarceration for the State and the cost of
enforcing Court decisions and attendance, as well as any delays to the
Court operations. The average cost per day to keep a prisoner in
custody in NSW is $187.14 for open custody, and $216.85 for secure
custody. The average cost per juvenile in custodial services in NSW in
2006-2007 was $543.19. Socially, the community is faced with the
problem of reintegrating into society those who have served time on
remand who have lost their job and community connections.
The consequences of remand
The consequences of remand
Chilvers M, Allen J and Doak P, May 2002. ‘Absconding on Bail’, Bulletin – Contemporary Issues in Crime and
Justice No. 68, NSW Bureau of Crime Statistics and Research.
Remanding a person into custody is not, however, a decision which courts take lightly. In
order for the criminal justice system to function effectively, accused people must turn up to
Court on set dates and an assessment must be made of the likelihood that a person will flee.
Similarly, an assessment must be made as to whether the accused may commit more offences
or interfere with the criminal justice process, for example by interfering with witnesses or
evidence, or be a danger to
someone else or to him or herself.
Research indicates that a large number of people on bail fail to appear. There are costs
associated with their detection and arrest as well as the risk of further offences. In 2008,
around 5.5% of accused persons in the Local Court failed to appear and warrants were
issued for their arrest. In Higher Courts, the rate was around 0.2%. While these are
significant reductions from 2001, where the rates were around 10.5% and 3% respectively,
there is concern that some of these accused persons
continue to commit offences whilst on bail.
It is therefore important for bail laws to be carefully balanced to ensure that accused people
are only remanded where it is necessary to achieve the stated aims of the bail scheme.
Chilvers M, Allen J and Doak P, May 2002. ‘Absconding on Bail’, Bulletin –
Contemporary Issues in Crime and
Justice No. 68, NSW Bureau of Crime Statistics and Research.
Where the “presumption against bail” classification applies the
accused must satisfy the Court that bail should not be refused.
This presumption has attracted a considerable sum of
controversy for the following reasons:
􀂂 the classification operates against the presumption of
innocence and the requirement that the prosecution must prove
the case against the accused
􀂂 there is a significant pressure to plead guilty to a minor
offence, if an accused cannot get bail; and
􀂂 there is little redress for those who are refused bail and
ultimately are acquitted.
Source: Cran v State of NSW [2004] NSWCA 92.
Presumption against Bail