Under Australian law, bail is the legal mechanism where a person who is arrested for a criminal offence can be released pending their trial, rather than being held in custody throughout its entire duration. Once the accused has been arrested and charged with a crime, the police will consider whether it is appropriate to release them on bail, and if so what bail conditions should be imposed. Bail can be obtained from the police after initial arrest, as well as from a Magistrate in the Local Court, a judge in the District Court, or a Justice in the Supreme Court. Research from the NSW Bureau of Crime Statistics and Research indicates that defendants are most likely to be granted bail in the Local Court. In 2007, 7.6% of defendants appearing in NSW Local Courts for any offence were refused bail, and 47.6% were refused bail in the Higher Courts, though both these figures have trended upwards in recent years. The purpose of this article is to help inform people unfamiliar with the legal system about the criteria that are taken into account by NSW courts when they are considering bail applications.
The regulation of the New South Wales bail system is outlined in the Bail Act 1978 (NSW), where section 32 provides a mandatory list of the criteria that must be considered in every bail application. It is important to note that the principle criterion applicable to bail applications is the probability or improbability of the defendant responding to bail, and not their supposed guilt or innocence. While the seriousness of the alleged offences may be taken into account during bail applications, the courts cannot rely on it as the sole determinant of whether bail will be granted.
It should be noted that there is a legal presumption under section 9 of the Act for bail being granted for all offences, except for those listed under section 9(1). A defendant will usually be entitled to bail if they have been arrested for a minor offence, such as one only punishable by a fine or listed in the Summary Offences Act 1988(NSW). Offences that are excluded under section 9(1) include serious indictable drug, violence or firearms offences, or where a person is already subject to a long term supervision order or on lifetime parole. Section 9C also requires the court not to grant bail to a defendant charged with the crime of murder, unless it is justified by exceptional circumstances.
There is a range of criteria listed in section 32(1) of the Bail Act 1978 (NSW), which the courts apply when considering a defendant’s eligibility for bail. The court will consider the probability of the defendant appearing in court, taking into account:
The courts will also give consideration to the interests of the defendant, including:
The court will also take into account the interests of other potentially affected parties when determining whether to grant bail. The court may consider the protection of the victim of the alleged offence, the protection of the victim’s close relatives, or any other person believed to require protection in the circumstances.
The courts will also consider the protection and welfare of the wider community, including:
Once bail is granted, section 34 requires the defendant not to be released until they undertake in writing to appear before the court whenever required to, and to notify the court of any change of address. Bail may be unconditional, or conditions may be attached to it, such as the defendant agreeing to forfeit money if they fail to meet their bail undertakings, reporting to police on a regular basis, or surrendering their passport.
Under section 22A, a court must refuse to entertain an application for bail if that application has already been made and dealt with by the court, unless there are valid grounds for a further application. As such, it is important that the application be prepared properly, as the only way another application can be made afterwards is if it can be demonstrated that one of these grounds would apply. The grounds are that:
A court may also refuse to entertain an application for bail if it believes that the application is frivolous or vexatious in nature.
If you have any further questions about how the criteria considered during a bail application would apply to you, or need any further information, please contact us.
This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.
This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.
Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.
Requirements under Section 10
Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed, and
(d) any other matter that the court thinks proper to consider.
These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:
Section 10 and traffic offences
A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.
However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.
In R v Nguyen  NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.
In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”
The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.
While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.
If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.
Aston Legal Solicitors and Barristers
111 Elizabeth Street
Sydney NSW 2000
The lawyers at Aston Legal practice only in Serious and Minor Criminal matters, Family, AVO, and Driving and Traffic matters. All matters are handled by mature, experienced lawyers. We fight fearlessly to protect the rights of our clients and we get GREAT RESULTS.
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