Prosecution Procedure Bail

Question 1

Relevant legislation

Answer 1

The issue of bail for drug dealing offences is covered by ss16 and 17A of the Bail Act 2000.
16. Judge only may grant bail for drug dealing offence
“A defendant who is charged with or convicted of a drug dealing offence may be granted bail by order of a High Court Judge or District Court Judge but not otherwise.”
17A Restriction on bail if defendant charged with serious Class A drug offence
“(1) This section applies to a defendant who is charged with a serious Class A drug offence and who is-
(a) of or over the age of 18 years; or
(b) aged 17 years and is charged with the offence in the District Court or the High Court
“(2) No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.
“(3) In particular (but without limiting any other matters in respect of which the defendant must satisfy the Judge under subsection (2)), the defendant must satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit any drug dealing offence.
“(4) In this section, serious Class A drug offence means—
“(a) an offence under section 6 or 12C(1)(a) of the Misuse of Drugs Act 1975 for contravention of section 6(1)(a), (b), (c), or (f) in relation to a Class A controlled drug; or
“(b) an attempt to commit an offence in paragraph (a).”
The Bail Amendment Act 2013 has changed the definition of a drug dealing offence to include an attempt:
Section 3 Bail Act 2000
drug dealing offence means—
(a) any offence against section 6 or 12C(1)(a) of the Misuse of Drugs Act 1975 in relation to a Class A controlled drug or a Class B controlled drug; or
(b) an attempt to commit an offence referred to in paragraph (a)]
Section 30 of the Bail Act 2000 sets out the types of special conditions that a judge can impose on the defendant. These include:
* an electronic monitoring condition (note, may only do so by agreement with the prosecution)
* any other condition that the judge considers will make it likely that the defendant will appear as required in Court on subsequent occasions (such as confiscate their passport, confine them within a specified geographical area)
Drug Offences 106
* any conditions that the judge considers necessary (such as direct them not to mix with certain people)

Question 2

Bail application process

Answer 2

1
Application for bail must be made before a Judge of the District Court or High Court by the defendant’s counsel
2
O/C Case should have forwarded instructions regarding bail to the prosecutor (regardless of whether bail is opposed or not, the O/C should always outline the conditions of bail to be sought) This provides the Crown Prosecutor with a “fall back” position in the event that bail is granted, in spite of the Crown’s opposition.
3
If bail is to be opposed, full and detailed reasons for opposing bail should be given. You should also consider providing the prosecutor with affidavits in support of the grounds for opposing bail.
4
The Judge will then remand the defendant for a case review hearing date or whatever is considered appropriate.