The Grant or Refusal of Bail
People charged with or convicted of an offence fall into three categories:
- Those remanded in custody are kept in custody until their next court appearance
- Those remanded on bail are released, but with various conditions imposed upon them
- Those remanded at large are released with no restrictions or conditions, except that they must attend their scheduled court appearances
The issue of bail can arise at various stages of the criminal justice process. These include after a person is charged with an offence but before that charge is determined; after a person is convicted of an offence but before they are sentenced; and after a person has been convicted and sentenced, but when an appeal is pending.
The presumption that a person is innocent until proven guilty is fundamental to criminal law. When determining whether to grant bail, a court must therefore balance competing interests.
On one hand, a court must not unnecessarily keep people in custody who may later be found not guilty. On the other hand, a court must take into account that certain people who have been charged with or convicted of offences may pose a risk of harm to the community, that they may offend again if bailed, or that they may fail to appear before the court if not kept in custody.
In determining whether or not to grant bail, a court has to balance the individual liberties of the person charged against the interests of any victims, the effective administration of the criminal justice system, and the safety of the wider community.
The rules governing the grant or refusal of bail are set out in the Bail Act 2000. References to sections below are to the Bail Act, unless stated otherwise.
Bail as of right
In some circumstances, judges are not able to refuse bail. In such circumstances, which are governed by section 7, a person is described as being “bailable as of right”. A person will be bailable as of right where:
- they are charged with an offence not punishable by imprisonment; or
- they are charged with an offence with a maximum punishment of less than three years imprisonment
However, there are exceptions.
For example, a person will not be bailable as of right if they are charged with particular violence and domestic violence offences, even though those offences carry maximum punishments of less than three years imprisonment. Those offences are assault on a child or assault by a male against a female (section 194 of the Crimes Act 1961), or breaching a protection order (section 49 of the Domestic Violence Act 1995).
Further, a person will not be bailable as of right if they have previously been convicted of an offence punishable by imprisonment, and if they are now also charged with an offence punishable by imprisonment.
Obligation to release a person unless just cause for detention exists
Even where a person is not bailable as of right, they may still be released on bail at the court’s discretion. The court must release such persons on reasonable terms unless it is satisfied that there is “just cause” for their continued detention. In determining whether “just cause” exists, a court must take into account whether there is a risk that the person may fail to appear in court, interfere with witnesses or evidence, or offend while on bail.
Section 8 of the Bail Act 2000 also lists other factors the court may take into account when making this assessment. They include (but are not limited to) the following:
- the seriousness of the offence with which the person has been charged
- the seriousness of the punishment that could be imposed
- the strength of the evidence
- the person’s character and past conduct, particularly proven criminal behaviour
- whether the person has a history of offending while on bail
- the likely length of time before the matter goes to trial or a hearing; and
- any other special matter relevant to the circumstances
These matters are relevant because, in some cases, a person remanded in custody may spend more time in prison waiting for trial than they would serve if ultimately convicted.
The court must also take into account the views of any victim of an offence. Where a person has been charged with breaching a protection order, the court’s paramount concern will be the need to protect the victim of the alleged offence.
Defendants who are 17 years of age must generally be granted bail provided they have not been previously sentenced to imprisonment, or charged with serious offending (section 15).
These general guidelines are subject to exceptions detailed at sections 9 to 17A in the Bail Act 2000.
For example there are restrictions on the grant of bail where a person has been charged with particular types of serious offending. These include murder (see section 9A) or certain drug-related offences (see sections 16 and 17A).
Restrictions also apply where a person has been found guilty and is awaiting sentence (see section 13). When deciding whether to grant bail in such cases, the court may instead take into account whether the person is likely to be sentenced to imprisonment, the likely length of time until the sentence hearing, the personal circumstances of the person and their immediate family and any other relevant considerations. If a person awaiting sentence is unlikely to receive a sentence of imprisonment, this must count against the person being remanded in custody.
"Reverse onus of proof"
The general rule is that the police or prosecution must satisfy the court that there is just cause for a person’s detention. The onus of proof is therefore with the police or prosecution.
However, there are some circumstances where the person seeking bail must themselves prove to the court that bail should be granted. The onus of proof therefore shifts to the person seeking bail. In these circumstances, a “reverse onus of proof” is said to apply.
Examples include the following:
- Cases where a person has been charged with specified serious offences including sexual violation such as sexual violation, robbery, or kidnapping (see section 10)
- Cases involving particular repeat offenders (see section 12)
- Cases where a person is convicted but is awaiting sentence (see section 13)
Bail ordinarily involves a range of conditions, which vary from case to case. Common conditions include the place of residence, non-association with particular individuals, bans on alcohol consumption, curfews, or surrendering of passports.
Electronically monitored bail (EM bail) is a restrictive form of bail. A person on EM bail must remain at a specified residence at all times unless special permission to leave is granted for an approved purpose (such as work). Compliance is monitored via an electronically monitored anklet that must be worn 24 hours a day.
EM bail may be an alternative to remand in custody in certain cases. For example, it may be appropriate where there is a long delay until trial and the court is satisfied it addresses the relevant risks.