The new Bail Act 2013 (NSW) has not taken effect in NSW as yet, but is expected to become law in early 2014.
The current Bail Act 1978 (“the old Bail Act”) looks at presumptions in relation to bail, and then a list of criteria under ‘section 32’ which consider:
- The probability of the accused appearing in court,
- The interests of the accused,
- The protection of any specific person or persons, and
- The protection and welfare of the community.
The new Bail Act and ‘unacceptable risk’
The new Bail Act eradicates section 32 and instead imposes a requirement to consider a new criterion called an “unacceptable risk”.
Under the new Bail Act, the court will have to consider whether there are any unacceptable risks in granting bail to an accused person.
Bail may be refused if the court is satisfied that there is an unacceptable risk that cannot be sufficiently mitigated by imposing bail conditions.
In considering whether there is an unacceptable risk, the new Bail Act incorporates some of the considerations in section 32 criteria of the old Bail Act.
What is an unacceptable risk?
It is an unacceptable risk that an accused person if released from custody will:
- Fail to appear at any proceedings
- Commit a serious offence
- Endanger the safety of victims, individuals or the community, or
- Interfere with witnesses or evidence
In considering whether the accused is an unacceptable risk, the court looks at, generally:
1. The accused’s background, criminal history, and community ties.
2. The nature and seriousness of the offence:
The court in R v Medich  NSWSC 1488 held that the seriousness of the charge/s can be highly relevant to the question of bail, but is certainly not the sole consideration.
3. The strength of the prosecution case and the likelihood of a custodial sentence if convicted:
The fact that there is a very strong prosecution case and that the likely outcome is a lengthy prison sentence does not necessarily mean that bail will be refused.
For example, in Amane Iskandar  NSWSC 7 the accused was charged with conspiracy to supply not less than a large commercial quantity of heroin and not less than a commercial quantity of cocaine.
The prosecution case was very strong, comprising recorded telephone conversations which – together with other evidence – appeared to establish the accused’s involvement in the illegal enterprise.
Bail was nevertheless granted in that case.
Iskandar is authority for the proposition that the strength of the prosecution case is a prime consideration, but not the exclusive consideration in determining bail.
Other considerations are:
4. The length of time the accused is likely to spend in custody if refused bail.
5. Whether the accused has a history of violence.
6. Any special needs of the accused
7. The need for the accused to be free to prepare their case and obtain legal advice,and
8. The need to be free for any lawful purpose such as attending a drug and alcohol rehabilitation program in house.
Bail conditions to mitigate unacceptable risk
The new Bail Act also incorporates:
A. A character acknowledgment,
B. A conduct requirement, and
C. A security requirement.
A. Character acknowledgment
This where an acceptable person must acknowledge he/she is acquainted with the accused, regards him/her as a responsible person, who is likely to comply with the bail acknowledgment.
B. Conduct requirement
This is a requirement where the accused is to do or refrain from doing something (this is applicable if the security requirement is not required)
C. Security requirement
This is money or equity that is deposited or offered to mitigate any unacceptable risk that the accused will fail to appear.
It means that the security may be forfeited if bail is breached.
It can apply if the conduct requirement is not needed.
So, the new Bail Act radically changes the terminology used and, to a lesser extent, the matters taken into account when determining if a person should be released from custody on bail.