Don’t Let the Truth Get in the Way of Bail Act Hysteria


On 17 September 2014, the Daily Telegraph published a (“news”) story decrying the decision of Police to grant bail to a never licensed driver charged with an offence of Dangerous Driving Causing Death following the tragic loss of a schoolgirl waiting at a bus stop.

The story alleged that Police had no choice but to grant bail under the new Bail Act.

It was part of one of many ongoing campaigns waged by the Daily Telegraph.

The story has little regard to the true reality.

I have worked as a criminal defence lawyer for more than 15 years.

I have represented numerous clients charged with offences of Dangerous Driving causing Death or Dangerous Driving causing Grievous Grievous Bodily Harm.

The offence is charged pursuant to s52A Crimes Act 1900.

I can’t recall a single one of those clients who was not granted police bail on being charged.

I was curious on reading the story to determine whether my anecdotal experience was consistent with the wider experience.

I’ve spent the last few days picking the minds of the other senior lawyers in the firm and delving into their collective memories representing countless clients in these circumstances.

No one can remember a client who was bail refused.

The pervasive recollection is of clients granted police bail.

That’s not to say there are not and will not be cases in which it is entirely appropriate to refuse bail. I wouldn’t want to fall into the trap of oversimplifying the issue.

Enough of my personal experience.

What did the provisions of the old Bail Act provide in what the paper and others now laud as the good old days?

The old Act divided offences into 3 categories – offences with a legal presumption against bail, offences with a neutral position and offences with legal presumption in favour of bail.

A section 52A offence carried a positive presumption in favour of bail.

That was a piece of law compelling police (or a Court) to grant bail unless the prosecution discharged an onus to prove bail should not be granted.

In short, the widely demonised old Bail Act left police little choice but to grant bail for a charge of this nature.

Does the new Bail Act create a presumption requiring the grant of bail? Simple answer, no. In fact not at all.

The new Bail Act has done away with rigid and often inflexible presumptions, one way or the other.

Instead, the question is always one of assessing relevant risks and whether they can be addressed by imposing bail conditions.

The new Bail Act requires Police to refuse bail if there is an unacceptable risk that cannot be addressed by imposing appropriate bail conditions.

That is a question for police themselves to assess.

The relevant risks are whether an applicant for bail will:

  • fail to appear at any proceedings for the offence, or
  • commit a serious offence, or
  • endanger the safety of victims, individuals or the community, or
  • interfere with witnesses or evidence.

It’s a simple common sense test. Is there a risk relevant to bail?

If no, bail is granted.

If yes, the next question is whether the risk can be managed. If no, then bail must be refused. There’s no trickery or legal sleight of hand involved.

It follows any assertion police were required to grant bail is in fact a concession that in their experienced judgement the suspect posed no unacceptable risk that could not be managed.

Police granted bail because it was the appropriate thing to do and any other suggestion is at best disingenuous and at worst downright dishonest.

Bail is a matter of process.

The question of bail should never be confused with the proper determination of a fitting punishment for criminal conduct when proved or admitted.

A grant of bail should never be seen as some missed opportunity to dole out summary and arbitrary punishment demanding cries of outrage.

A Court will determine whether an accused is guilty either on the evidence or their plea of guilty.

If guilty, a Court will impose a penalty according to law. Dangerous Driving causing Death is a serious offence.

Guideline judgments require sentencing Courts impose significant terms of full time imprisonment even for first time offenders.

It is the well established practice of sentencing Courts in New South Wales to do so in the overwhelming majority of cases.

A grant of bail will do nothing to frustrate that process or the consequences that flow from it.

Then again, who am I to suggest the truth get in the way of a sensational story?


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