Part 1 - Preliminary Flashcards
Section 1A - Purpose (framework about bail/conditions/remand)
provide a legislative framework for the making of decisions about whether A should be granted bail, with or without conditions, or remanded in custody.
Section 1B - Guiding principles (max-safety;innocence/liberty;promoting fairness etc. in BDM/public understanding)
(1) Guiding principles: (2) Prlt’s intention that they be looked at for interpretation
● (a) Maximising the safety of the community and persons affected by crime to the greatest extent possible
● (b) Taking account of the presumption of innocence and the right to liberty
● (c) Promoting fairness, transparency and consistency in bail decision-making
● (d) Promoting public understanding of bail practices and procedures
Section 3 - Definitions
Aboriginal person – (a) descendant from A/TSI; AND (b) identifies as A/TSI; AND
(c) is accepted as such by an A/TSI community.
Bail decision-maker means any of the following empowered under this Act to grant bail, extend bail, vary the amount of bail or the conditions of bail or revoke bail:
● (a) Court (b) bail justice (c) popo (d) Sheriff/person under Fines Reform Act
Bail support service means a service provided to assist an accused to comply with his or her bail undertaking, including (a) bail support program, (b) medical treatment, (c) counselling for substance abuse/other behaviour linkable to commission of offences; (d) counselling/treatment/support/assistance services for one or more of (i) mental illness; (ii) intellectual disability (iii) acquired brain injury; (iv) autism; (v) neurological impairment, inter alia dementia (e) homelessness services.
Child/Parent – see CYF Act 2005
Conduct condition means condition of bail imposed under s 5AAA(4).
Drug of dependence – see DPCS Act 1982
Electronic signature includes, but is not limited to (a) person confirming their agreement by electronically selecting option indicating affirmation; (b) scanned/photo of hand-sig
Family violence/FV intervention order/FV offence/FV safety notice/recognised DVO: see FV Protection Act 2008
Legal practitioner means an Australian LP
Police officer – VPA Act 2013
Prison includes remand centre/youth justice centre under the CYF Act 2005 and any other place where persons may be detained in legal custody and imprisonment has a corresponding interpretation
Prosecutor in relation to an application under this Act, includes the informant, a police prosecutor and any other person appearing on behalf of the Crown
Sch 1 / Sch 2 – offence
Section 17 notice – means written notice of conditions of bail required by s 17
Surrounding circumstances – see s 3AAA.
Terrorism/foreign incursion offence; terrorism record; terrorism-related order; terrorism risk information; terrorist act; terrorist organisation ¬– see various Terrorism Acts/ Crim Code etc.
Unacceptable risk test – see s 4E;
Undertaking – see s 5.
Vulnerable adult – see just below.
Section 3AAAA - Meaning of vulnerable adult (over 18 and CPM impairment giving difficulty in understanding/making/communication, specific impairment not needed to be identified)
● (1) Person is VA if 18 or over and has a cognitive, physical or mental health impairment that causes the person to have difficulty in:
○ (a) Understanding their rights; or
○ (b) Making a decision; or
○ (c) Communicating a decision
● (2) Bail decision-maker doesn’t need to be able to identify the particular impairment to consider someone a VA.
3AAA Surrounding circumstances (nature/seriousness of offending; P case strength; crim history; prior conditions compliance; if A was on bail/summons/at large/parole/CCO; FVIO/FVSN/DVO; personal circs; vulnerability; BSS; victim’s view; time in custody on refusal; terrorist act support/association)
(1) Where this Act provides that BDM must take account surrounding circumstances, must take into account all circumstances that are relevant to the matter including but not limited to:
● (a) Nature + seriousness of alleged offending including whether it’s a serious example of the offence
● (b) Strength of the prosecution case
● (c) Accused’s Criminal history
● (d) Extent to which accused has complied with conditions of any earlier grant of bail
● (e) Whether, at the time of the alleged offending, the accused was:
○ (i) on bail for another offence, or
○ (ii) subject to a summons to answer to a charge for another offence, or
○ (iii) at large awaiting trial for another offence, or
○ (iv) released under a parole order, or
○ (v) Subject to a CCO or otherwise serving anor. sentence for another offence
● (f) Whether there is in force against A (i) a FVIO or (ii) FVSN or (iii) recognised DVO
● (g) A’s personal circumstances, associations, home environment and background
● (h) Any special vulnerability of A, including being child or Aboriginal person, being in ill-health or having cognitive impairment, intellectual disability or mental illness
● (i) Availability of treatment or bail support services
● (j) Any known view or likely view of alleged victim on grant/amount/conditions of bail
● (k) Length of time accused is likely to spend in custody if bail refused
● (l) Likely sentence to be imposed should accused be found guilty of charged offence
● (m) Whether accused has expressed support for (i) the doing of a terrorist act, or
(ii) terrorist org or (iii) the provision of resources to a terrorist org
● (n) Subject to (2), whether the accused has/d association with (i) someone who has expressed support for terrorism per (m) (ii) someone who’s (in)directly engaged in, preparing for, planning, assisting in/fostering doing of terrorist act, (iii) terrorist org.
● (2) But only if BDM is satisfied that the A knew the person (a) supported the (i)-(iii) thing, (b) engaged in terrorist acts etc, (c) group was terrorist organisation
3AA – Offence that is both a Sch 1 and a Sch 2 offence (is Sch 1)
For this Act, an offence that is both Sch 1 / Sch 2 offence must be taken to be Sch 1 offence.
3AAB Meaning of terrorism record; 3AAC Meaning of terrorism risk info. –
See Acts
3A Determination in relation to an Aboriginal Person (must take cultural background/issue/obligation into account)
In making determination under this Act re: an AP, BDM must take account (in addition to any other requirements under Act) any issues that arise due to person’s Aboriginality, including:
● (a) Cultural background, including ties to extended family or place; and
● (b) Any other relevant cultural issue or obligation.
3B Determination in relation to a child (consider all options pre-remand; strengthen/preserve relationships; continuing living arrangements; allowing training etc to continue; minimize stigma; likely sentence; ensure conditions only onerous enough; don’t refuse only because of accommodation)
(1) In making determination under this Act re: child, BDM must account (in addition to “””):
● (a) The need to consider all other options before remanding a child in custody; and
● (b) The need to strengthen and preserve the relationship between the child and their family, guardian or carers;
● (c) Desirability of allowing living arrangements continue w.o interruption /disturbance
● (d) Desirability of allowing the education, training or employment of the child to “””
● (e) Need to minimise stigma to the child resulting from remand in custody
● (f) Likely sentence should the child be found guilty of the offence charged
● (g) Need to ensure bail conditions are no more onerous than are necessary and don’t constitute unfair management of the child
(2) May take account information or recommendation from bail support service report
(3) Bail mustn’t be refused on sole ground child don’t have any/adequate accommodation.
3C Determination in relation to person of/over 18 years in remand centre (consider whether A threated order of YRC/can be controlled in YRC)
● If: (a) the A is/over 18 and in a youth remand centre pursuant to remand warrant issued when the A was under 18; and (b) criminal proceeding relates to one+ offences alleged to have been committed when A was/over the age of 18 years —
● Then in making a determination under this Act, BDM must take account (in addition to “”): (c) Whether the A has engaged in conduct that threatens the good order and safe operation of the YRC; and (d) Whether the A can properly be controlled in YRC.
3D Flow charts
[Print and attach at end of Act]
