Chapter 2 - Bail & evidential, public interest

Question 1

Section 7 –
What are the rules as to
granting bail

Answer 1

bailable as of right if not imprisonable and less than 3 years imprisonment unless its against FH assault.
Not bailable if previous conviction perishable by death or imprisonment.
Subject to sections 9 to 17.

Question 2

Section 10 -

What are the rules around specified offences and bail?

Answer 2

Can be bailed if 1 previous specified offence and charged with one. Includes 17 year olds.
Defendant must be bailed at court and prove on balance of probabilities that they won’t offend and compromise the safety of everyone.

Question 3

Section 21 -

What are the conditions around granting Police bail??

Answer 3

If arrested without warrant and Police believe it is prudent to grant bail.
This does not apply to opp to bail sections.
If charged with FH offence primary considerations for protection of the victim and any family member.
With a BOPO the Police must make the paramount consideration the need to protect every person who, in
relation to the protection order, is a protected person.
Does not include bail as of right in Section 7.

Question 4

Section 21A What are the conditions of giving notice of Police bail.

Answer 4

A Police employee who grants Police bail must—

(a) give the notice of Police bail to the defendant; and
(b) ensure that the defendant understands the conditions of bail; and
(c) ensure that the defendant authenticates the notice.
(4) The date for attendance by the defendant before a court must not be later than 14 days from the date of the notice.

Question 5

Section 23 –
What are the conditions around Bail and breach
of protection
order

Answer 5

The person must not be
released on bail by a Police employee under section 21 during the 24 hours
immediately following the arrest.
This does not limit appearance in court ASAP though.
After the 24 hour period you can Police bail them.
If there are more charges arising from the same incident they should not be police bailed in the first 24 hours.

Question 6

R v Bryant
S21 Bail Act
What were the findings?

Answer 6

Although BRYANT could be bailed - it was found in the wording that “prudent to do so” gave the Police a subjective approach to grant bail.
“requires constables to consider
whether a defendant can be safely released until he or she becomes the
responsibility of the court. In that regard, too, constables exercising their discretion
are expected to weigh as well as those matters other criteria including any risk of
offending during that period.”
Held
s 21 - confers
the authority while not derogating from the duty to bring the defendant before the
court; Police are to consider whether a defendant can be safely released until he or
she becomes the responsibility of the court; the two bail regimes operate in tandem
but are separate and apply at different points in time; application to appeal granted
but appeal dismissed.

Question 7

What is the evidential test?

Answer 7

Comes before public interest test.
A reasonable prospect of conviction exists if, in relation to an identifiable
person (whether natural or legal), there is credible evidence which the
prosecution can adduce before a court and upon which evidence an impartial
jury (or Judge), properly directed in accordance with the law, could
reasonably be expected to be satisfied beyond reasonable doubt that the
individual who is prosecuted has committed a criminal offence.
It is necessary that each element of this definition be fully examined when
considering the evidential test in each particular case.

Question 8

What is the public interest test?

Answer 8

Once a prosecutor is satisfied that there is sufficient evidence to provide a
reasonable prospect of conviction, the next consideration is whether the public
interest requires a prosecution. It is not the rule that all offences for which there
are sufficient evidence must be prosecuted. Prosecutors must exercise their
discretion as to whether a prosecution is required in the public interest.