Bail

Question 1

Bailable as of right?

Answer 1

Bailable as of right where:

D is charged with offence not punishable by imprisonment (s 7(1))
OR
D is charged with offence and max is <3 yrs unless (s 7(2)):
- Offence is assault of child/by male on female (s 194 CA 1961) OR Offence is breach of TPO/PO (s 49 DVA 1995)

Question 2

Not bailable as of right where?

Answer 2

Charged with an offence punishable by imprisonment AND previously convicted of offence punishable by death OR imprisonment (s 7(5)).

Question 3

Bailable as of right subject to?

Answer 3

ss 9 - 17

Question 4

If not bailable as of right?

Answer 4

D not otherwise bailable as of right must be released on reasonable terms and conditions unless court satisfied just cause for continued detention (s 7(5)).

Question 5

Is there Just Cause for Continued Detention?

Answer 5

Unless an exception applies, the prosecutor has to provide “just cause for continued detention” (s 7(5) BA 2000). Police usually only oppose bail on a first appearance for quite serious charges.

Question 6

How do Judges determine whether there is Just Cause for Continued Detention?

Answer 6

Judges determine whether “just cause” exists by considering the mandatory and discretionary factors in s 8(1) and (2) respectively.

Question 7

Section 8 criteria?

Answer 7

In deciding to grant or re-grant bail, the Judge MUST consider whether there is a risk that:

• the D is a flight risk
• the D may interfere with evidence or witnesses
• the D may commit further offences if granted bail

Question 8

Section 9 exception

Answer 8

Treason or espionage:

No bail for D charged with treason or espionage (except by order of HC J or GG)

Question 9

Section 9A exception

Answer 9

Murder:

No remand or bail where charged with murder UNLESS (reverse onus D must) satisfy judge on balance that won’t commit further offence on bail involving danger to safety of any person.

Question 10

Section 10 exception

Answer 10

Specified offence:
No bail where:
- Charged with specified offence; and
- Been convicted previously of specified offence

UNLESS:
- satisfies Judge on balance that D will not commit further violence offence on bail/at large.

Question 11

Section 11 exception

Answer 11

GUILTY of specified offence:

No bail at all where:

• D pleads/found guilty for specified offence AND
• has been previously convicted of specified offence.