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The new Act sought to make the position in relation to bail much clearer. The new Act removed a number of pre-existing “presumptions” that affected a person’s right to be granted bail. These presumptions were replaced by one relatively clear and concise test, namely, to be granted bail a person simply had to pass a test as to whether they posed an unacceptable risk.

The new Act is undoubtedly an improvement on the old Bail Act. The old Act had been amended and hacked at by the NSW Parliament on countless occasions. This was generally for the purpose of political point scoring and making it appear as though the current government was ‘tough on crime.’ The repeated amendments resulted in the Act becoming disjointed and unnecessarily complex.

The new Act introduced a clear, streamlined test for granting bail. However, just a few weeks after its introduction it began to come under political fire. Five weeks after the commencement of the Act, NSW Premier Mike Baird asked the former Attorney General, John Hatzistergos to review the Act. The move seemed to be a political response to the media reporting that the new Act makes it easier for prisoners to be released on bail, particularly in light of a number of high profile criminals being released on bail under the new laws.

Hatzistergos has now finished his review, and has recommended that the Act be “tightened.” One of the suggestions put forth is changing the rights of an accused charged with a “serious offence.” Under the current Act, the onus is on the prosecution to show that the accused person is an “unacceptable risk.” If they cannot do so then the accused person is to be granted unconditional bail. Further, even if there are risks, if the risks can be mitigated then bail will still be granted.

Under the proposed changes, in relation to a “serious offence,” the onus would shift to the accused to show cause that they should be granted bail. What constitutes a “serious offence” includes firearms offences and offences that carry a penalty of life imprisonment.

It is important to remember, that the new Act already provides that if there are unacceptable risks, such as a person presenting a danger to the community, or concerns that the person may flee, then bail is to be denied. The new Act does not necessarily make bail easier to achieve, it simply ensures that people are not detained unnecessarily while they await trial.

Within our justice system the presumption of innocence is a fundamental principle. It is important to remember that when an accused person is applying for bail there is not yet any finding in relation to guilt. Sometimes mistakes are made and an innocent person may find themselves in custody.

Bail is not a form of punishment. At the time of considering bail there is nothing more than an accusation from the police. Sometimes those accusations are correct and are supported by evidence. Sometimes they are not.

For this reason it is important that the presumption of innocence is maintained within our legal system and in relation to bail applications. If the onus were to shift to the accused to show cause that they should be released on bail, it is essentially creating a presumption against bail in relation to serious offences. This seriously impinges upon the presumption of innocence and accordingly, the rights of the accused. The prosecution is required to prove the guilt of an accused in criminal matters, and this should also be the case in relation to granting bail.

As it stands, the current Act is a welcomed improvement in relation to bail. The Bail Act 2013 provides clarity and relative surety in relation to applications for bail. However, if these proposed changes are introduced the rights of an accused are seriously admonished and the presumption of innocence is offended. Further, it is concerning that Parliament were considering changing the Act only 5 weeks after its commencement. Although these changes have not yet been made, they certainly have not been ruled out. If Parliament hack at this Act like they did its predecessor, this Act will end up just like the previous Act, overly complex and disjointed.

This article was written by the Kells Criminal Law Team.