Bail Essay

Using the issue of bail/remand, complete a practice piece of writing.
The legal concept of bail refers to the conditional freedom of a person charged with a criminal offence. The purposes of bail are to protect society from potentially violent and dangerous offenders and to minimise the amount of inmates held on remand.
The decision to grant bail is made by a magistrate in a formal bail hearing held in the local court. Under certain circumstances police can grant bail. Bail is a crucial part of the criminal investigation process and any person charged with a criminal offence has the right to apply for bail. A magistrate hears a bail application in the local court and determines whether the person is a danger to society or not. If the magistrate believes there may be risks associated with granting a certain person bail they may impose conditions to mitigate these risks. Some common Bail conditions include the suspension of passports, routine police check ups, payment of surety’s and electronic monitoring.
The issue of bail is highly debated and has thus attracted the attention of legal experts resulting in several commissions and reforms. To be effective the Criminal Justice System must balance the rights of offenders with the States responsibility to protect society and prosecute criminals. The Bail Act 1978 (NSW) created a system of presumption for or against bail based on the nature of the criminal charges. This presumption based system had its weakness’s which included the increase in presumption on bail leading to increasing number on remand, a high number of vulnerable groups such as young offenders, indigenous offenders and re-offenders were frequently found in remand. Controversy arose with 30% of people on remand receiving a guilty verdict and 10% of those receiving a jail sentence.
Critics of this act called for a review of the Bail Act 1978. The NSW Law Reform Commission conducted a detailed and lengthy review assisted by many legal experts and thus made recommendations to the NSW government based on their findings. The recommendations were adopted and praised and the Bail Act 2013 (NSW) came into play. The key reforms in this Act were the abolishment of the presumption based system and the adoption of a more case by case evidence based system which was highly applauded around the world.
However, recent high profile cases such as the Steven Fesus case challenged the effectiveness of these reforms. As a result the NSW Attorney General Brad Hazzard called for a review of the new bail laws. Mr Hazzard stated that the review was aimed at ensuring “the safety of the community, victims and witnesses is at the forefront of all decisions made on bail.” These concerns were promoted by high profile media “shock jocks” such as Sydney Morning Herald reporter Rachel Olding who stated that the new bail laws were “making it easier for accused criminals to be bailed..”.
In late 2014 further reforms regarding bail were announced. The Bail Amendment Act 2014 (NSW) introduced a new requirement for those applying for bail to “show cause” why their detention on remand is unjustified. This reform shifted the burden to the accused to demonstrate they would not fail the criteria in the risk assessment. This meant that people who could not represent themselves or could not afford representation found themselves at a disadvantage and the amount of vulnerable persons on remand began to rise again.
On one hand this reform was applauded because it was a “recalibration of unacceptable risk. Where the consequences of the risk are significant, they (offenders) are given a great weight” as said by Mr Hazzard. But on the other hand, several criticisms were raised regarding the new laws. Former Director of Public Prosecutions Nicholas Cowdery stated that “laws cannot cater for ever situation” and that one “atypical and aberrant case is certainly not a good basis for launching into yet more interference with the Bail Act”.
Bail continues to be an essential yet highly complex part of the criminal investigation process. This issue highlights the difficult challenge facing the criminal justice system of balancing the rights and needs of victims, offenders and society. Bail is a very complex issue and is different for every cases as Nicholas Cowdery said “laws cannot cater for every situation, that is why courts exercise judgement.
Zac Peacock