2.1 Bail & Custody Flashcards
s7 Bail Act 2000 - When is a defendant bailable as of right? (2)
- When charged with offence not punishable by imprisonment
- Charged with offence <3yrs unless:
- assault on child
- male assaults female
- assault someone in family relationship
s7(4) When is a defendant not bailable as of right?
Not bailable of right if charged with offence punishable by imprisonment after previously convicted of offence punishable by imprisonment
s8(1) BA2000 - When considering if there is just cause for continued detention, what 4 ‘risks’ MUST the court take into account?
Whether defendant may:
- fail to appear
- interfere with witnesses/evidence
- offend while on bail
- other matter making it ‘unjust’ to detain
s8 BA2000 - In considering if there is ‘just cause’ for continued detention under subsection (1), the court MAY take into account the following 8 things in s8(2):
- nature of offences
- strength of evidence & probability of a conviction
- seriousness and severity of the punishment
- character and past conduct
- history of offending whilst on bail
- likely length of time before matter comes to court
- possible prejudice to the defence in preparation of the defence
- other special matters
s8(3A) BA2000 - FV offences, what is the courts primary considerations when considering bail?
Need to protect
1. the victim
2. any person in a family relationship with the victim
s8(3C) BA2000 - Breach PO, What is the courts primary considerations when considering bail?
The paramount decision is to protect every protected person on the PO
s8(4A & 4B) BA2000 - what can and can’t the court take into consideration regarding a defendants cooperation/assistance with authorities of any offence
Can’t take their cooperation into account when considering bail however their cooperation may be relevant to assessment of whether there is a risk that defendant will fail to appear at court etc.
s10 - Restriction on bail if defendant with previous conviction for specified offences charged with further specified offences applies to a defendant of what age?
Of or over the age of 17 years
s10 - give 4 examples of a SPECIFIED OFFENCES
Any four of:
- s128B sexual violation
- s132 sexual conduct with child <12
- s167 murder
- s171 manslaughter
- s188 wounding with intent
- s234 agg robbery
- s232 agg burglary
- s173 att murder
- s191agg wounding/injury
- s198A uses FA against law enforcement
- s198B uses FA in committing crime
- s208 & 209 abduction & kidnapping
- s236 assault w intent to rob
s10 defendant charged with specified offences - no defendant may be granted bail or allowed to go at large except by order of who?
High court judge or a district court judge
A. What is the REVERSE BURDEN OF PROOF as it relates to s10(4), (5), (6)?
B. s10(5) What is the standard of proof for the defendant and what must he satisfy the court
C. s10(6) What primary considerations must court take into account in deciding to grant bail for s10 offending.
A. Defendant can be subject to reverse burden of proof in bail decision where the defendant has to prove that he or she should be released on bail rather than the prosecutor proving that the defendant should not be released on bail
B. (5) satisfies on balance of probabilities. Won’t while on bail commit violence offence or danger safety of anyone.
C. (6) Need to protect safety of public and victims
s12(1)(a) Restriction on bail.
Defendant 18+ charged with offence over 3yrs prison and at time on bail for another 3yr+ offence and…
at any time has previously received a sentence of imprisonment. Only granted bail by DC/HC judge
s12(1)(b) Restriction on bail.
Defendant 18+ charged with offence over 3yrs prison and previously received 14+ sentences of prison…
previously convicted of offence committed while on bail for 3yr+ offence.
Only granted bail by DC/HC judge
s12(5) Further restriction on bail in certain cases, the defendant must satisfy the judge on the balance of probabilities that he will not while on bail or at large commit what? (2)
- violence against or danger to the safety of anyone OR
- burglary or any other serious property offence. (more than 7yrs serious property offences)
s15 Granting bail to defendants under 18yrs
What must the courts think when granting of bail to defendant who is 17 and 18yrs of age? (2)
- appears to be 17 or 18 yrs of age AND
- not previously been sentenced to imprisonment.
Must be bailed (unless exceptions exist ie specified offences)
s16 - bail is only granted for drug dealing offences by order of who?
HC or DC judge
s21 when may Police grant Police bail
When considers PRUDENT to do so subject exclusions s10, 12, 16
s21 What considerations must police make considering police bail for those charged with:
- FV offences
- Breach of PO
- To protect victim and person in family relationship with victim
- need to protect protected persons on the order