Bail Act 2013 (NSW)

Bail Act 2013 No 26 An Act to make provision for bail in connection with criminal and other proceedings. Preamble The Parliament of New South Wales, in enacting this Act, has regard to the following— (a) the need to ensure the safety of victims of crime, individuals and the community, (b) the need to ensure the integrity of the justice system, (c) the common law presumption of innocence and the general right to be at liberty. Part 1 Preliminary 1 Name of Act This Act is the Bail Act 2013. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Purpose of Act (1) The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions. (2) (Repealed) 4 Definitions (1) In this Act— accommodation requirement—see section 28. accompaniment requirement—see section 28A. accused person or person accused of an offence includes the following— (a) a person who has been charged with or convicted of an offence, (b) a person whose conviction for an offence is stayed, (c) a person in respect of whom proceedings on an appeal against conviction or sentence for the offence are pending, (d) a person in respect of whom a new trial has been ordered to be held for an offence. apprehended violence order has the same meaning as it has in the Crimes (Domestic and Personal Violence) Act 2007. authorised justice means— (a) a registrar of the Local Court, or (a1) a Children's Registrar, or other Registrar of the Children's Court, under the Children's Court Act 1987, or (b) an officer of the Department of Attorney General and Justice who is declared, by order of the Minister, whether by reference to his or her name or office, to be an authorised justice for the purposes of this Act, or (c) a person, or member of a class of persons, declared by the regulations to be an authorised justice for the purposes of this Act. bail—see section 7. bail acknowledgment means the bail acknowledgment for a decision to grant bail given to the accused person under section 33. bail application means— (a) a release application, or (b) a detention application, or (c) a variation application. bail authority means a police officer, an authorised justice or a court. bail concern—see section 17. bail condition means a condition of bail. bail decision—see section 8. bail guarantor means any person who enters into a bail security agreement, other than the accused person granted bail. bail money means money agreed to be forfeited under a bail security agreement. bail security means security for the payment of bail money deposited with a bail authority. bail security agreement means an agreement entered into, or required to be entered into, under a security requirement of a bail condition (whether by the accused person or by any other person). character acknowledgment—see section 27. child means a person under the age of 18 years. Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. community service order means a community service order under the Crimes (Sentencing Procedure) Act 1999 or a children's community service order under the Children (Community Service Orders) Act 1987. conclusion of proceedings—see section 6. conduct requirement—see section 25. conviction includes a finding of guilt. correctional centre means a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 and includes a detention centre within the meaning of that Act (subject to the Children (Detention Centres) Act 1987). court means— (a) the Court of Criminal Appeal, the Supreme Court, the Land and Environment Court, the Industrial Court, the District Court or the Local Court, or (b) any other court which, or person who, exercises criminal jurisdiction. detention application—see section 50. domestic violence offence has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. enforcement condition—see section 30. fail to appear offence means an offence against section 79. fine-only offence means an offence not punishable by a sentence of imprisonment. first appearance means a first appearance of an accused person before a court or authorised justice in proceedings for an offence. function includes a power, authority or duty and exercise a function includes perform a duty. intimate partner, of a person (the first person), means a person who— (a) is or has been married to the first person, or (b) is or has been a de facto partner of the first person, or Note— "De facto partner" is defined in the Interpretation Act 1987, section 21C. (c) has or has had an intimate personal relationship with the first person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature. intoxicated person means a person who appears to be seriously affected by alcohol or another drug or a combination of drugs. Local Court includes the Children's Court exercising jurisdiction under the Children (Criminal Proceedings) Act 1987. non-association and place restriction order means a non-association order or a place restriction order under section 17A (2) of the Crimes (Sentencing Procedure) Act 1999 or section 33D (2) of the Children (Criminal Proceedings) Act 1987. offence includes an alleged offence. personal violence offence means a personal violence offence of a kind referred to in section 4 (a) of the Crimes (Domestic and Personal Violence) Act 2007. pre-release requirement—see section 29. proceedings for an offence—see section 5. proceedings on an appeal against conviction or sentence—see section 5 (2). release application—see section 49. security requirement—see section 26. serious domestic violence offence means— (a) an offence under the Crimes Act 1900, Part 3 with a maximum penalty of 14 years imprisonment or more if the offence is committed by a person against an intimate partner, or (b) an offence under a law of the Commonwealth, another State or Territory or another jurisdiction that is similar to an offence under that part. show cause offence—see section 16B. substantive proceedings for an offence—see section 5 (3). supervision order means an extended supervision order or an interim supervision order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017. terrorist act has the same meaning as it has in Part 5.3 of the Commonwealth Criminal Code. unacceptable risk—see section 19. variation application—see section 51. victim of an offence includes an alleged victim of an offence. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this Act to a person charged with an offence includes a reference to a person who has been issued with a court attendance notice for the offence under the Criminal Procedure Act 1986. (3) In this Act, a power to vary a bail decision includes— (a) a power to revoke the bail decision and substitute a new bail decision, and (b) a power to vary bail conditions. (4) In this Act, a power to vary bail conditions includes— (a) a power to revoke a bail condition, and (b) a power to revoke a bail condition and substitute a new bail condition, and (c) a power to impose a new bail condition. (5) Notes in this Act do not form part of this Act. 5 Proceedings for an offence (1) In this Act, proceedings for an offence means criminal proceedings against a person for an offence (whether summary or indictable), and includes the following— (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence, (e) any other proceedings of a kind prescribed by the regulations. (2) Proceedings on an appeal against conviction or sentence include— (a) proceedings on an application for annulment of a conviction or sentence made under section 4 or 5 of the Crimes (Appeal and Review) Act 2001, and (b) proceedings on an appeal against an order imposed by the Land and Environment Court on conviction for an offence. (3) Proceedings for an offence are substantive unless the proceedings are— (a) proceedings relating to bail, or (b) proceedings on an appeal against any interlocutory judgment or order given in proceedings, or (c) proceedings declared to be non-substantive by the regulations. 6 Conclusion of proceedings (1) Proceedings for an offence conclude when a court finally disposes of the proceedings concerned. (2) If a court convicts an accused person of an offence, and a sentence is to be imposed, proceedings for the offence do not conclude until the sentence has been imposed. (3) The committal of a person for trial or sentence is not a conclusion of proceedings for an offence. (4) If a person's conviction or sentence for an offence is stayed on or before the conclusion of proceedings for an offence, the proceedings do not conclude while the stay is in force. (5) The regulations may make further provision for the time at which proceedings for an offence are to be regarded as concluded and this section has effect subject to the regulations. Part 2 General provisions 7 What is bail (1) Bail is authority to be at liberty for an offence. Note. An offence includes an alleged offence. (2) Bail can be granted under this Act to any person accused of an offence. (3) A person who, because of bail, is entitled to be at liberty for an offence is entitled (if in custody) to be released from custody. Note. Limitations to the entitlement to be at liberty are specified in section 14. 8 Bail decisions that can be made (1) The following decisions (each of which is a bail decision) can be made under this Act in respect of a person accused of an offence— (a) a decision to release the person without bail for the offence, (b) a decision to dispense with bail for the offence, (c) a decision to grant bail for the offence (with or without the imposition of bail conditions), (d) a decision to refuse bail for the offence. Note. Part 3 sets out how a bail decision is to be made by a bail authority. (2) A bail decision cannot be made if substantive proceedings for the offence have concluded and no further substantive proceedings for the offence are pending before a court. (3) A bail decision can also be made in respect of a person who is not accused of an offence in the circumstances specified in Schedule 1. Note. Schedule 1 provides for the grant of bail where a person is required to appear in proceedings otherwise than because he or she is accused of an offence. In such cases, this Act applies as if the person were accused of an offence. 9 Decision to release without bail A decision to release a person without bail can be made only by a police officer with power to make that bail decision under this Act. 10 Decision to dispense with bail (1) A decision to dispense with bail can be made only by a court or authorised justice with power to make that bail decision under this Act. (2) If bail for an offence is dispensed with, the person accused of the offence is entitled to be at liberty for the offence, in the same way as if bail had been granted. (3) A court or authorised justice is taken to have dispensed with bail for an offence if— (a) a person accused of the offence appears before the court or authorised justice in proceedings for the offence, and (b) the person has not previously been granted or refused bail for the offence, and (c) the court or authorised justice does not grant or refuse bail for the offence. 11 Decision to grant or refuse bail A decision to grant or refuse bail can be made only by a police officer, authorised justice or court with power to make that bail decision under this Act. 12 Duration of bail (1) Bail ceases to have effect if— (a) it is revoked, or (b) substantive proceedings for the offence conclude and, at the conclusion of the proceedings, no further substantive proceedings for the offence are pending before a court. (2) Bail is not revived if, after the conclusion of substantive proceedings for an offence, further substantive proceedings for the offence are commenced. However, a new bail decision for the offence can be made under this Act. Note. Proceedings for an offence generally conclude if a person is convicted of and sentenced for the offence. If an appeal against the conviction or sentence is lodged after that conclusion, bail is not revived, but a new bail decision can be made. (3) If bail is granted by a bail authority for a specified period, bail ceases to have effect at the end of that period, unless sooner revoked. (4) An authorised justice or a court before which an accused person is required to appear under a bail acknowledgment may continue bail if— (a) bail would otherwise cease to have effect, and (b) substantive proceedings for the offence have not concluded. 13 Requirement to appear (1) A person granted bail, or in respect of whom bail is dispensed with, is required to appear in person before a court, and surrender to the custody of the court, as and when required to do so in proceedings for the offence for which the bail decision is made. (2) A requirement to appear is— (a) if bail is granted—a requirement to appear in accordance with the accused person's bail acknowledgment, or (b) if bail is dispensed with—a requirement to appear as and when required by the court or by any notice or other process by which a person can be required to appear before a court. (3) The time at which a person is required to appear is the time at which the matter relating to the offence is called at court premises (whether or not the matter is dealt with at that time). (4) This section does not prevent a court before which a person is required to appear from excusing a failure to appear. (5) The regulations may make further provision for the requirement to appear. 14 Limitation on entitlement to be at liberty (1) Bail does not entitle a person to be at liberty until— (a) the person signs, and gives to the bail authority, a copy of the bail acknowledgment for the decision to grant bail, and (b) all pre-release requirements of bail conditions have been complied with. Note. Pre-release requirements are dealt with in Part 3. For example, a bail condition may require an accused person, before being released on bail, to surrender his or her passport. Bail acknowledgments are dealt with in Part 4. (2) Bail does not entitle a person to be at liberty on those occasions on which the person is required to appear before a court under his or her bail acknowledgment. (3) Bail does not entitle a person to be at liberty while the person is in custody for some other offence, or reason, because of which the person is not entitled to be at liberty. Note. For example, a person may be in custody for 2 offences. If bail is granted for one offence only, the person is not entitled to be released. Part 3 Making and variation of bail decisions Division 1 Preliminary 15 Bail decision to be made in accordance with this Part (1) A bail decision is to be made in accordance with this Part. (2) This Part applies to the making of a decision to affirm a bail decision, or to vary a bail decision, after hearing a bail application in the same way as it applies to the making of a bail decision. (3) A bail authority must exercise any function in relation to bail conferred by Part 5, 8 or 9 in accordance with this Part, except as otherwise provided by this Act. 16 Flow charts—key features of bail decisions (1) The flow charts illustrate the key features of bail decisions under this Act. (2) Flow Chart 1 illustrates the show cause requirement (set out in Division 1A), which applies only to show cause offences. (3) Flow Chart 2 illustrates the unacceptable risk test (set out in Division 2) as it applies to all offences, other than offences for which there is a right to release. (4) In the flow charts— conditional release means a decision to grant bail with the imposition of bail conditions. unconditional release means a decision— (a) to release a person without bail, or (b) to dispense with bail, or (c) to grant bail without the imposition of bail conditions. Flow Chart 1 Show cause requirement Flow Chart 2 Unacceptable risk test Division 1A Show cause requirement 16A Accused person to show cause for certain serious offences (1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified. (2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test—all offences). (3) This section does not apply if the accused person was under the age of 18 years at the time of the offence. 16B Offences to which the show cause requirement applies (1) For the purposes of this Act, each of the following offences is a show cause offence— (a) an offence that is punishable by imprisonment for life, (b) a serious indictable offence that involves— (i) sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or (ii) the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, (c) a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence, (c1) a serious domestic violence offence, (c2) an offence under the Crimes Act 1900, section 54D, (d) any of the following offences— (i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a firearm, (ii) an indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place, (iii) a serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm, (e) any of the following offences— (i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon, (ii) an indictable offence that involves the unlawful possession of a military-style weapon, (iii) a serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon, (f) an offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act, (g) an offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code, (h) a serious indictable offence that is committed by an accused person— (i) while on bail (whether granted under this Act or a law of another jurisdiction), or (ii) while on parole (whether granted under a law of this State or another jurisdiction), (i) an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order, (j) a serious indictable offence of attempting to commit an offence mentioned elsewhere in this section, (k) a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section, (l) a serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under— (i) this Act, or (ii) Part 7 of the Crimes (Administration of Sentences) Act 1999, or (iii) the Criminal Procedure Act 1986, or (iv) the Crimes (Sentencing Procedure) Act 1999. (2) In this section, a reference to the facts or circumstances of an offence includes a reference to the alleged facts or circumstances of an offence. (3) In this section— firearm, firearm part, prohibited firearm and pistol, and use, acquire, supply or possession of a firearm or firearm part, have the same meanings as in the Firearms Act 1996. prohibited weapon and military-style weapon, and use, buy, sell, manufacture or possession of a prohibited weapon, have the same meanings as in the Weapons Prohibition Act 1998. serious indictable offence has the same meaning as in the Crimes Act 1900. serious personal violence offence means— (a) an offence under Part 3 of the Crimes Act 1900 that is punishable by imprisonment for a term of 14 years or more, or (b) an offence under a law of the Commonwealth, another State or Territory or any other jurisdiction that is similar to an offence under that Part. Division 2 Unacceptable risk test—all offences 17 Assessment of bail concerns (1) A bail authority must, before making a bail decision, assess any bail concerns. (2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will— (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision. (4) This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement). 18 Matters to be considered as part of assessment (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division— (a) the accused person's background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (d1) behaviour engaged in by the accused that may, under the Crimes (Domestic and Personal Violence) Act 2007, section 6A(2), constitute domestic abuse, Examples of behaviour— behaviour that is physically abusive or violent, including strangulation and sexual assault, animal abuse and stalking (e) whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction), (f) whether the accused person has a history of compliance or non-compliance with any of the following— (i) bail acknowledgments, (ii) bail conditions, (iii) apprehended violence orders, (iv) parole orders, (v) home detention orders, good behaviour bonds or community service orders, (vi) intensive correction orders, (vii) community correction orders, (viii) conditional release orders, (ix) non-association and place restriction orders, (x) supervision orders, (f1) if the bail authority is making the assessment of bail concerns because the accused person has failed or was about to fail to comply with a bail acknowledgment or a bail condition, any warnings issued to the accused person by police officers or bail authorities regarding non-compliance with bail acknowledgments or bail conditions, (g) whether the accused person has any criminal associations, (h) the length of time the accused person is likely to spend in custody if bail is refused, (i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence, (i1) if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed, (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success, (k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice, (m) the need for the accused person to be free for any other lawful reason, (n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence, (o) in the case of a serious offence or a domestic violence offence against an intimate partner, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community, (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A, (q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code), (r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism, (s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism. (2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered— (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole. 19 Refusal of bail—unacceptable risk (1) A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk. (2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will— (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) If the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk. (4) Bail cannot be refused for an offence for which there is a right to release under Division 2A. 20 Accused person to be released if no unacceptable risks (1) If there are no unacceptable risks, the bail authority must— (a) grant bail (with or without the imposition of bail conditions), or (b) release the person without bail, or (c) dispense with bail. (2) This section is subject to Divisions 1A and 2A. 20A Imposition of bail conditions (1) Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns. (2) A bail authority may impose a bail condition only if the bail authority is satisfied that— (a) the bail condition is reasonably necessary to address a bail concern, and (b) the bail condition is reasonable and proportionate to the offence for which bail is granted, and (c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and (d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and (e) it is reasonably practicable for the accused person to comply with the bail condition, and (f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person. (3) This section does not limit a power of a court to impose enforcement conditions. Note. Enforcement conditions are imposed for the purpose of monitoring or enforcing compliance with other bail conditions. Section 30 provides for this type of bail condition. Division 2A Special rules for certain offences 21 Special rule for offences for which there is a right to release (1) The following decisions are the only bail decisions that can be made for an offence for which there is a right to release— (a) a decision to release the person without bail, (b) a decision to dispense with bail, (c) a decision to grant bail to the person (with or without the imposition of bail conditions). (2) There is a right to release for the following offences— (a) a fine-only offence, (b) an offence under the Summary Offences Act 1988, other than an excluded offence, (c) an offence that is being dealt with by conference under Part 5 of the Young Offenders Act 1997. (3) Each of the following offences under the Summary Offences Act 1988 is an excluded offence— (a) an offence under section 5 (obscene exposure) if the person has previously been convicted of an offence under that sect