Centuries later in NSW the Bail Act 1978 was introduced to remedy the inequities underpinning the execution of bail law. This Act established both a right to bail for minor offences with specific exceptions and a presumption against bail for other more serious offences. Between its implementation and the present day this Act has undergone numerous amendments. After an extensive process of consultation with the New South Wales Law Reform Commission, the new Bail Act 2013 (the Act) came into force on the 20th May, 2014. This legislation meant that an accused person was to be denied bail if there was an “unacceptable risk” that the person would, if released on bail, fail to appear at court, commit a serious offence, endanger the safety of victims (individuals or the community), or interfere with witnesses or evidence. On the 27th June 2014, following expressions of concern by police, victims, community groups as well as media attention about by a selective number of bail decisions, Premier Mike Baird announced a review of that Act (headed by former Labour Attorney–General, John Hatzistergos).
The legislative result of this review has led to a reversal of the onus of proof for “show cause” offences. Effectively this means is that in serious offences, the onus has shifted to a defendant to prove why s/he should be granted bail. If an accused fails to do this, s/he would be placed in or remain in gaol. Some commentators believe that this latest legislative change to the NSW Bail Act is flawed, because it poses an unacceptable risk to justice by violating a fundamental principle of our legal system, i.e. that remanded in custody should not be a default position for someone charged with an offence.
A realistic assessment of bail-issues surely works on the basis that the presumption of innocence must yield in certain circumstances in order to protect society against further harm from the offender. On the other hand, those refused bail will increase their chances of recidivism and further strain the capacity of this state’s prison system.
- The accused must not associate or approach specific persons;
- The accused must not go within a certain distance of a specific place (for example, within 500 metres of a former partner’s home);
- The accused must obey a curfew;
- The accused will be required to do certain things, such as report to a particular place (for example, a local police station on a regular basis, perhaps even twice a day in some cases).
In November 2015 the definition of “show cause” offences was expanded so that the definition of a serious personal violence offence now includes particular offences under a law of the Commonwealth and other State or Territory jurisdictions that are similar to the NSW definition of a personal violence offence. Furthermore, a new category of offences has been introduced for which an “exceptional circumstances” test will apply. That list includes: an offence under s310J of the Crimes Act (Membership of a Terrorism Organisation) and any offence carrying a custodial sentence where the accused is presently being prosecuted under s310J or has previously been convicted, or, is subject to a control order under Commonwealth legislation.
The consequences for breach of bail can be extremely serious. If, while on bail, conditions are breached without a reasonable excuse, then the offender can be arrested by police and taken into custody.
Should an accused fail to appear in Court at the specified time, a presiding Magistrate, Judge or Justice can both issue a ‘bench warrant’ for your arrest and order that any amounts that the accused (or your “bail guarantor”) has posted as a condition of bail be forfeited.
When an accused later appears in Court, his/her bail may be revoked (cancelled). If that happens, it is unlikely that the Court would grant bail again.