The Bail Act 2013 gives the Court power to:
- Dispense with bail (ie release a person from custody without any conditions whatsoever)
- Grant bail conditionally or unconditionally (ie release a person from custody with or without conditions)
- Refuse bail
The primary purposes of bail are to ensure that the accused attends proceedings for the offence which they have been charged and to protect the community and victims. Therefore, the concept of ‘unacceptable risk’ is an important one when discussing bail. The Court must consider whether there is an unacceptable risk that the accused, if granted bail will:
- Fail to appear at any proceedings for the offence
- Commit a serious offence,
- Endanger the safety of victims, individuals or the community; and/or
- Interfere with witnesses or evidence.
Prior to amendments to the Bail Act that came in force on 28 January 2015, a bail authority, in most cases, a Court, would be required to first consider whether or not there are any unacceptable risks in granting bail. If so, then the question is if there are any conditions that could be imposed to mitigate the risk. If the answer to that is no, then bail should be refused. Otherwise, bail could be granted either conditionally or unconditionally.
These considerations have now been amended. The Court is now required to consider:
- If there are any bail concerns; and
- If so, whether there are conditions that may mitigate the concerns.
Consideration of these two factors will allow the court to determine whether or not there is an unacceptable risk in granting bail. The court will then take action based on that consideration.
- If there are no bail concerns, bail should be granted unconditionally.
- If there are concerns, but these can be reasonably mitigated by bail conditions, bail must be granted conditionally.
- If the Court has determined there are bail concerns and no bail conditions could reasonably be imposed to address the concerns, then there is an unacceptable risk and bail should be denied.
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