Part 2 - Granting of bail and admission to bail - Who can grant bail Flashcards
S10 — Power of police officer, sheriff or authorised person to grant or refuse bail
● (1) Section applies if person arrested and not practicable to bring straight to court immediately after being taken into custody or expiration of questioning time under 464A Crimes Act
● (2) Police officer of or above sergeant rank or for time being in charge of police station, the sheriff or 115(5) person must without delay whether to consider bail grant
● (3) If person a child, BDM must ensure parent/guardian/independent person present during proceeding in relation to bail
● (4) independent person present may take steps to facilitate bail, eg by arranging accommodation
● (5) PO, sheriff, 115(5) person may grant or refuse bail. (5AA) BDM prohibited from granting bail if P (a) states they have terrorism risk information re the accused; (b) alleges it shows there’s a risk the A will commit a terrorism/foreign incursion offence.
● (5A) if BDM prohibited by (5AA) or ss 13, 13AA and 13A from granting bail to the arrested person, BDM must (a) refuse to consider a grant of bail (b) bring person before court ASAP
Note
Sections 13, 13AA and 13A specify circumstances in which only a court may grant bail. These circumstances relate to—
• certain instances in which the step 1—EC test applies;
• certain terrorism or foreign incursion offences;
• accused persons who have a terrorism record;
• persons accused of certain Schedule 2 offences who are already on 2 or more undertakings of bail in relation to other indictable offences.
● (5B) if BDM who’s sheriff or 115(5) person decides to grant bail but person refuses to enter undertaking, (5C) applies. (5C) BDM may take and convey person to BDM who is PO for their consideration.
● (6) If BDM refuses bail under (5) and the arrested person is not a person to whom s 10AA applies (meaning person is a child, vulnerable adult, aboriginal person, or person arrested on enforcement warrant under fines reform act), BDM must
(a) Endorse the reasons for refusal on warrant/file/other papers/register/record; and (b) if in ordinary court sitting hours, cause person to be brought before court ASAP and advise them of right to apply for bail when they appear before the court
(c) If outside court hours, advise they can apply to a BJ for bail and (i) cause them to be brought before BJ ASAP if they wish to apply (ii) if don’t wish to so apply, cause person to be brought before court ASAP and advise they can apply for bail when appearing before the court
(d) give court/bail justice endorsement with the reasons
(e) give person written statement setting provisions of subsection and subsection (5)
(6A) If bail granted but arrested person objects to amount fixed for bail/any condition, BDM must (a) advise them they’re entitled to apply to court or BJ (if out-of-hours) for variation of bail amount/conditions; (b) give person written statement with provisions of (5), (6A), (7), (8). (6B) if person arrested on enforcement warrant, (6A) is n/a.
(7) if arrested person elects under (6A) to apply for variation of bail amount/conditions, (8) BDM must cause person to be brought before court/BJ ASAP.
10AA Police remand
● (1) Applies for when bail refused by BDM who is PO of sergeant rank or above or for the time being in charge of a police station.
● (2) section doesn’t apply to (a) child, (b) vulnerable adult, (c) aboriginal person or (d) a person arrested on an enforcement warrant under fines reform act
● (3)(a) person considered to be vulnerable adult/aboriginal person if PO is of the according opinion (b) if considering if person is aboriginal, must have regard to any statement made by person as to whether they’re an aboriginal person.
● (4) If bail refused under 10(5) for such a person, PO must:
○ (a) Must endorse on the warrant/file/register etc reasons for refusing bail
○ (b) remand person in custody to appear before Court ASAP within 48 hours after being so remanded
○ (c) And cause endorsement to be produced before the Court
○ (d) Advise person of entitlement to apply for bail when before Court if so wish
○ (e) Give the person a written statement setting out provisions of this section and of s 10(5)
○ (5) If PO considers not practicable for person to be brought before court within the next 48 hears (including by AV link), must not remand but instead (6) must bring person before a BJ as soon as practicable.
(7) if remanded person not brought before court within 48 hours, must be brought before BJ ASAP after expiry of that period.
10A Power of bail justice to grant bail or refuse bail
(1) applies if person in custody brought before bail justice by any means
(2) bail justice must and hear and determine bail/variation/remand application
(2A) BJ can defer to PO’s opinion on vulnerability/aborigineity
(3) BJ must ensure Parent/guardian/independent person etc be present if child. (4) independent person present may take steps to facilitate bail, eg by arranging accommodation
(5) BJ in accordance with this act may grant or refuse bail
Same note as appearing above applies
(5AA) BJ prohibited from granting bail if P (a) states they have TRI re the A; (b) alleges it shows there’s a risk the A will commit a terrorism/foreign incursion offence.
(5AAB) if BJ prohibited by (5AA) or ss 13, 13AA and 13A from granting bail to the arrested person, BJ must refuse to consider a grant of bail.
(5A) BJ who grants bail must certify on remand warrant
(a) consent to the person being bailed and (b) amount of any suret(ies) and (c) conditions of bail
(6) BJ who refuses bail must:
(a) Remand person in custody to appear before court on next working day or (b) within 2 working days if (i) next working day not practicable or (ii) person is child and proper venue of the Children’s Court is in region of State prescribed under CYFA
(7) On remanding person in custody under subsection (6), the bail justice must certify on the remand warrant a statement of the refusal of bail and of the grounds for it.
10B Informant must bring person to court if bail justice prohibited from granting bail
(1) If bail justice prohibited from granting bail by section 10A(5AA), 13, 13AA or 13A,
(2) informant must cause person to be brought before court ASAP
11 Cash deposit as security for penalty – see further if need be
11 Cash deposit as security for penalty – see further if need be
12 Power of court to grant or refuse bail
(1) applies if person in custody is brought before court by any means
(2) court must hear and determine application for bail/variation/remand in custody
(3) court can grant or refuse bail
(3A) on grant, court must record on warrant/file/other papers (a) consent to person being bailed (b) surety amount (if any) (c) any conditions of bail
(4) If court refuses bail, it must (a) remand the person in custody to appear at later date, which must not be for period longer than 21 clear days in case of child
(b) and certify on remand warrant refusal and reasons for it
(5) if child brought before court on expiry of remand period, can’t remand for a further period longer than 21 days
12A When bail decision maker must state reasons for granting bail
(1) Section applies if BDM grants bail where under s 4AA (a) the EC test applies; OR (b) the SCR test applies. (2) If BDM is court, it must include in the order a statement of reasons
(3) otherwise, the BDM must record/transmit statement of reasons in accordance with regs.
12B Persons subject to a summons to answer to a charge
(1) this section applies if (a) person subject to summons to answer charge is before court (other than KidC) on hearing in the criminal proceeding relating to the charge (b) hearing of the CP is to be adjourned. (2) court may, on application made by the P or on its own initiative
(a) remand the A in custody to appear before the court on the resumption of the hearing;
(b) or grant bail.
(3) (a) nothing affects operation of s 331 of the Crim Proc Act 2009; or (b) prevents the court allowing the A to go at large, including on refusing an application made by the P under (2).
13 treason, murder, certain other offences
● (1) Only SC can bail for treason. (2) Only SC, or a court committing the person for trial, may bail person accused of murder.
● (3) Only court can bail person accused of any other offence subject to EC test
○ (4) unless test applies only because of s 4AA(2)(c) or (d) and
○ (a) accused is child, vulnerable adult or aboriginal person; or
○ (b) The offence charged is (i) offence under item 1 or 30 of Sch 2 (commit offence while on bail, parole, on summons, awaiting trial, during CCO, while serving sentence; offence against Bail Act) (ii) conspiracy to commit/incitement to commit, attempting to commit (i) offence
● (5) Only court can grant bail to person accused of offence against:
(a) a provision of Subdiv A of Div 72 of Chap 4 of the Criminal Code (Cth); or
(b) a provision of Part 5.3 or 5.5 of the Criminal Code (Cth).
13AA Accused with terrorism record
Only a court may grant bail to a person who has a terrorism record, irrespective of the offence of which the person is accused.
13A Accused on 2 or more undertakings of bail
(1) Section applies to person (who’s not a child, vuln/adult or aboriginal person) who is accused of a relevant Sch 2 offence and who’s already on 2+ bail undertakings in relation to other indictable offences. (2) only a court can grant bail.
(3) For this section, RS2O is any S2O other than:
(a) offence referred to in item 1 of Sch 2 (and not referred to in any other item of that Sch); or
(b) an offence referred to in item 30 of Schedule 2; or
(c) in relation to an offence referred to in item 1 of Schedule 2 (and not referred to in any other item of that Schedule), an offence referred to in item 31 of that Schedule; or
(d) in re: offence referred to in item 30 of Sch 2, an offence referred to in item 31 of that Sch.
