The Bail Act

By Peter Ward
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Recently, Parliament has amended the Bail Act with the objective of making it far more difficult for an accused person charged with criminal offences to be released on bail. Traditionally, any person being held in custody was, prima facie, entitled to bail.

What is the bail act?

The Bail Act provides strong exceptions to this general principle referred to above. Section 4(2) of the Bail Act provides that a court shall refuse bail if an accused person is charged with committing a schedule 1 offence, unless the bail maker is satisfied that exceptional circumstances exist that justify the grant of bail. The introduction of schedule 1 offences has extended the number of offences and circumstances that require the accused to show exceptional circumstances when making a bail application.

Affected offences

The expanded category of offences requiring an accused to show exceptional circumstances include some of the following offences – I refer to section 3 of schedule 1 where an accused is charged with a schedule 2 offence that is alleged to have been committed by the accused:
(a) Whilst on bail for any schedule 1 offence or schedule 2 offence; or
(b) While subject to a summons to answer to a charge of any schedule 1 offence or schedule 2 offence; or
(c) While at large awaiting trial for any schedule 1 or schedule 2 offence; or
(d) During the period of a community corrections order made in respect of the accused for any schedule 1 or schedule 2 offences; or
(e) While otherwise serving a sentence for such offence; or
(f) While released under a parole order made in respect of any schedule 1 or schedule 2 offence.

Section 4 of schedule 1 refers to section 77B Crimes Act (aggravated home invasion), section 5 of schedule 1 refers to section 79A Crimes Act (aggravated carjacking). The above examples further demonstrate the difficulty that an accused person will face in making an application for bail.

What has changed?

The amendments to the Bail Act have replaced the old requirement for certain serious offences allegedly committed by an accused, whereby in the past an accused was called upon to show cause while bail should be granted. This has been replaced by a more stringent requirement as outlined by section 4(4) of the Bail Act. A bail decision maker according to the amendment must refuse bail for a person who is accused of a schedule 2 offence where an accused is required to show compelling reasons why the detention in custody in not justified. The new amendment places a far more onerous situation for an accused applying for bail. Schedule 2 extends the number of charges and circumstances where the onus on the accused is reversed.

The following sections of schedule 2 illustrate the fact that more offences are encapsulated under schedule 2. These offences include the following:

-Section 1B – indictable offences alleged to have been committed while subject to a summons for another indicatable offence;
-Section 1C – an accused allegedly committing an indicatable offence whilst awaiting trial for another indictable offence;
-Section 1D – allegedly committing an indictable offence during a period of a CCO for another indictable offence or whilst otherwise serving a sentence;
-Section 1E – extends the requirement to people released under a parole order and subject to another indictable offence;
-Section 4 of schedule 2 - prescribes a bail decision maker to require an accused to demonstrate compelling reasons as to why a person charged with intentionally causing injury in circumstances of gross violence and further, section 5 extends that requirement to an accused who recklessly commits an offence in circumstances of gross violence. Other examples of offences requiring an accused to demonstrate compelling reasons in order to be released on bail relate to charges of section 12 of schedule 2 relating to an offence of abduction or detention for a sexual purpose.

How can we help?

It is essential that people charged with a serious criminal offence requiring them to make an application for bail are represented by experienced lawyers who are up to date and familiar with the latest development in the criminal law. At Galbally & O’Bryan, we have experienced criminal advocates who regularly appear in all courts. Galbally & O’Bryan are on call to represent people appearing in court at any time, including weekends. For our client’s convenience, we have offices at Melbourne, Dandenong and Pakenham. We are geared to represent people in all parts of the state.

For further information contact Peter Ward on 03 9200 2533.

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Peter Ward