Page 136 - Week 01 - Thursday, 9 April 1992
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Bail may be granted by the Supreme Court, the Magistrates Court, or a senior police officer in certain circumstances. The current state of the law in relation to bail is unsatisfactory. First, it is difficult to determine what the applicable law is because it is scattered over so many sources. In particular, the police have no comprehensive statutory guidelines to help them determine whether to grant or refuse bail. These criteria are found only in reported cases stretching back some 100 years.
Second, the existing law puts undue emphasis on the accused's financial means as the criterion for bail. This effectively discriminates against the poor or those who are new in a community and who do not have family or friends to act as surety. Those without the necessary resources have no option but to remain in custody and suffer all the disadvantages I described earlier.
The Bill consolidates the law of bail into one easily accessible Act. It will deal comprehensively with all aspects of bail. That is, in what circumstances is bail to be available? What criteria may be taken into consideration? What conditions may be attached to bail? How is bail to be enforced? When and how are bail decisions to be reviewed?
The new legislation will apply to child offenders as well as to adults and at any stage of the prosecution process up until sentencing. Few of the underlying principles of the Bill are radically new. Mostly, it re-enacts established law. Where it does make great advances is in procedures and in the emphasis placed on certain issues. One of the Government's primary objectives is to reduce reliance on money bail and to promote consideration of facts more directly relevant to the underlying purpose of bail - namely, will the accused person appear in court for trial?
There are several other innovations in this Bill. First, there is to be a statutory right to unconditional bail where the offence charged is punishable by a fine only or by no more than six months in gaol. This right will not extend to offenders who have in the past breached bail, who are in some way incapacitated and consequently need physical protection or who are already serving a prison sentence after being convicted for some other offence. The reason for this provision is that it is simply not appropriate to hold someone in custody pending trial for an offence for which that person either cannot be gaoled at all or can be gaoled for only a short time. In all other cases there will be a statutory presumption in favour of bail unless the prosecutor establishes a convincing case for why bail should not be granted.
Next, the Bill exhaustively specifies the only criteria which a court or police officer may take into account when deciding whether to grant or refuse bail. In this context, the Bill has been amended since its presentation to the last Assembly so that clause 22 now becomes the single source of reference for the general criteria for bail. These criteria fall into three categories - evidence relevant to whether the accused will appear on the appointed day to stand trial; matters concerning the accused's interests, especially his or her physical or mental state, his or her employment, whether there are any dependants who will be affected and the need to prepare a defence; and, finally, matters relating to the community's interest, that is, to ensure that the accused stands trial and that no-one tries to subvert the course of justice. None of these criteria is new. They are all well-established common law principles.
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