The Grant or Refusal of Bail
People who have been charged or convicted with an offence may be remanded at large, in custody, or on bail. Whether someone is to be released on bail may become relevant 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 but before sentence; and after conviction or sentence when an appeal is pending.
The presumption that a person is innocent until proven guilty is a fundamental precept of the criminal law. When determining whether to grant bail, a court must balance competing interests. On the one hand, there is the need not to unnecessarily imprison people who may later be found not guilty. On the other hand, the court must take into account that certain people who have been charged or convicted for offences may pose a significant risk of harm to the community, may offend again if bailed, or may fail to appear before the court if not kept in custody until that time. In determining whether to grant bail, a court will aim to balance the individual liberties of the person involved against the interests of victims, the effective administration of the criminal justice system and the concerns and safety of the wider community.
The Bail Act 2000
The rules governing the granting or refusal of bail are set out in the Bail Act.
Bail as of right
For certain offences, bail may be available as of right. In such circumstances, judges are not able to refuse bail. These situations are governed by section 7. A person may be bailable of right when or if charged with an offence not punishable by imprisonment, or if charged with an offence for which the maximum penalty is less than 3 years’ imprisonment (although there are certain exceptions to this rule for violence and domestic violence offences).
The section also lists specific offences that are bailable as of right (although an exception applies if the person has been previously convicted of an imprisonable offence). Additionally, section 15 governs situations where persons under 20 years of age may be bailable as of right.
Obligation to release unless just cause for detention exists
Generally, a defendant who has been charged with an offence not bailable as of right must be released by the court on reasonable terms unless the court is satisfied there is just cause for continued detention. Section 8 provides the relevant guidelines for the court when considering whether there is “just cause for continued detention”.
When considering this question, the court must take into account whether there is a risk the defendant may fail to appear in court on the date to which he or she has been remanded; whether there is a risk the defendant may interfere with witnesses or other evidence; and whether there is a risk the defendant may offend while on bail.
Section 8 also lists various other factors the court may take into account when making this assessment. These include factors such as the seriousness of the offence for which the person has been charged; the seriousness of the punishment that could be imposed for that offending; that person’s past conduct, including whether they have breached bail or offended on bail before; and the likely length of time before the matter may come to trial. These last matters become relevant because, in some cases, a person remanded in custody may spend more time on remand in prison waiting for trial than he or she would serve if ultimately convicted.
When considering an application for bail, the court must take into account any views of a victim of an offence (68(4)).
These guidelines are subject to specific exceptions detailed in the Act. For example, specific provisions apply in respect of drug dealing offences. These are found in sections 16 and 17. Special considerations also apply where a person has been found guilty and is awaiting sentence. When deciding whether to grant bail in that case, the court is entitled to take into account further factors, including the likely punishment for that offending and the likely length of time that will pass before that person is sentenced. This is governed by section 13. That section also provides that if a person awaiting sentence is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody. In cases where bail is sought after conviction and before sentence, the responsibility is on the person seeking bail to show to the court why bail should be granted.
"Reversed onus of proof"
There are other specified provisions in the Act where the person seeking bail bears the responsibility of proving to the court that bail should be granted. This is an exception to the general rule whereby the police or prosecution must satisfy the court there is just cause for detention. Examples of where the onus of proof shifts to the person seeking bail can be found in sections 10 and 12. These include situations involving repeat offending, people who have previously offended whilst on bail, and people charged with specified serious offences.