The Bail Act 2013 commenced on 20 May 2014,³ and the predecessor Bail Act 1978 was repealed.⁴ The new Act followed a review of NSW bail laws by the NSW Law Reform Commission (the Commission).⁵ The Commission noted that the 1978 Act was “one of the most convoluted and restrictive bail statutes in Australia”⁶ and that the “current scheme of presumptions, exceptions and exceptional circumstances [was] unduly complex and restrictive … [and] an unwarranted imposition on the discretion of police and the courts”.⁷

The Commission recommended that any reform retain a justification model, that is, that a person is entitled to be released unless detention is justified having regard to certain considerations.⁸ However, in enacting the 2013 Act, the government adopted a risk-management approach to bail decision-making.⁹

The key feature of the Bail Act 2013 as enacted was the unacceptable risk test which was intended to avoid the complexity of offence-based presumptions under the predecessor legislation.¹⁰ As enacted, the test required a bail authority to consider whether there was an unacceptable risk that an accused person, if released, would fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence.¹¹ Bail could be refused only if the bail authority was satisfied there was an unacceptable risk which could not be sufficiently mitigated by imposing bail conditions.¹²

Within weeks of the new Act being in force, the NSW Premier announced an urgent review in light of concerns that “recent bail decisions do not reflect the government’s intention to put community safety front and centre”.¹³ An interim report, published in July 2014, noted difficulties with the community accepting that an accused who presented an unacceptable risk could be safely released into the community even with strict bail conditions.¹⁴ The review also recommended introducing a show cause requirement for serious offences.¹⁵

The Bail Amendment Act 2014 commenced on 28 January 2015¹⁶ and adopted the recommendations made in the interim report.¹⁷ In addition to the unacceptable risk test, it introduced a show cause requirement, in s 16A, requiring a bail authority making a bail decision for a show cause offence¹⁸ to refuse bail unless the accused shows cause why their detention is not justified.¹⁹ The Attorney General distinguished show cause offences from the presumptions which had existed under the 1978 Act saying “unlike presumptions, determining show cause will not be the end of the matter”.²⁰ The Act also consolidated the unacceptable risk test from a two-stage to a one-stage test and introduced the concept of “bail concerns” in s 17. Under the reformulated test, a bail authority must assess bail concerns (that is, whether there is a concern an accused, if released from custody, will fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence) and must refuse bail if, on an assessment of those concerns, there is an unacceptable risk: ss 17(1)–(2); 19(1).

The presumption of innocence and the general right to be at liberty were repealed from s 3, and instead inserted as part of a preamble. The preamble states that, in enacting the Act, Parliament also had regard to the need to ensure the safety of victims of crime, individuals, and the community, and the need to ensure the integrity of the justice system.²¹ The Attorney General said this was because “[t]he review noted that the presumption of innocence and general right to liberty are more appropriately reflected as principles in a preamble rather than as a purpose of the Act”.²² In JM v R,²³ Garling J referred to the continued importance of these common law principles and the purpose of the preamble, observing “[a] court needs to keep in mind, and have regard to these principles when considering a grant of bail, because as a fundament of the law, they have not been excluded by the terms of the Act. On the contrary, the Parliament has embraced them”.

The Bail Amendment Act 2015 commenced on 5 November 2015²⁴ and introduced further amendments to the Act based on subsequent reviews and recommendations.²⁵ An additional offence category was added to the show cause requirement,²⁶ and additional matters were added to the list of considerations in the assessment of bail concerns. These included, for example, the accused’s history of compliance or non-compliance with various orders; the likelihood of a custodial sentence being imposed for the offence; whether the accused has any associations with a terrorist organisation or person or group advocating support for a terrorist organisation, or has made statements or carried out activities advocating support for terrorist acts or violent extremism.²⁷ A new provision, s 22A, was introduced to provide that a bail authority must refuse bail for terrorism related offences unless exceptional circumstances are established.²⁸

There are three types of bail application:

Parts 3, 5 and 6 of the Act contain various provisions relevant to a court’s jurisdiction to exercise the power to hear, make or vary bail decisions.

An accused has a right to release for certain offences and, in such circumstances, the court must release the person without bail, dispense with bail or, grant bail with or without conditions: s 21. Offences for which there is a right to release include fine-only offences, offences under the Summary Offences Act 1988 (other than “excluded offences” which are defined in s 21(3))³⁰ and offences dealt with by conference under Pt 5 of the Young Offenders Act 1997. An offence is not one for which there is a right to release if the accused has previously failed to comply with a bail acknowledgement or a bail condition for an offence: s 21(4). A court may make, or vary, a bail decision following the making of one of the bail applications summarised above, after hearing a bail application: s 48(1). A particular court only has the power to hear an application in the circumstances specified in Pt 6 of the Act, summarised in Table 1 below.

In general terms, a court has power to hear a bail application if:

Additional powers, set out in Pt 5, Div 3 include, when an accused first appears, a discretion for a court, of its own motion, to grant or vary bail where to do so would benefit the accused: s 53(1). A limitation on that power is that it does not apply to show cause offences: s 53(4).

Part 6, Div 3 of the Act sets out the powers specific to each court. These powers are summarised in Table 1.

The scope of the Court of Criminal Appeal’s powers to grant bail in certain of the situations identified in s 67 of the Act is not free from doubt. For example, in Karout v DPP (NSW),³⁶ an application for bail was made in circumstances where the applicant had applied for, but not been granted, special leave to appeal to the High Court following an unsuccessful sentence appeal in the Court of Criminal Appeal. The court concluded it did not have jurisdiction to grant bail under s 67(1)(d) as there was no appeal “pending” in the High Court and that if the legislature intended s 67(1)(d) to extend to an application for special leave then words to that effect would appear in the Act. As to whether the court could stay the sentence and then grant bail under s 67(1)(c), which enables the court to hear a bail application if a stay of execution of a conviction is in force, the court was reluctant to express a concluded view observing “it is an open question as to whether the applicant can rely upon s 67(1)(c)”.³⁷

The Bail Regulation 2014 sets out requirements as to the manner and form in which particular applications may be made.

A release application may be made by an accused person orally, if they are before the court, or in writing: cl 16(1). A prosecutor must make a detention application in writing and in the approved form, where practicable: cl 17(1). However, a court or authorised justice cannot decline to hear a detention application solely because it is not made in writing: cl 17(1A)(2). Variation applications are generally to be made in writing and in the approved form, although an accused may make a variation application orally if they are before the court: cll 20(1)–(2). A court may make a decision on a variation application even if it does not comply with the approved application format: cl 20(3).

To assist the court in its assessment of bail concerns, which is central to determining whether or not there is an unacceptable risk, both the prosecution and the defence present evidence (accepting the rules of evidence do not apply) to assist in that assessment. In every application, the prosecution would tender the statement of facts, the accused’s criminal history and bail history (where either or both exist) and other material related to the issue of whether there is an unacceptable risk such that bail must be refused. “Other material” might extend to information about property an accused may own, or have an interest in, overseas; passports in false names; access to unexplained funds; or, in some drug cases, information about an accused’s associations with other alleged drug syndicates. For applications in the Supreme Court, practitioners must have regard to the relevant Practice Note which outlines the practice and procedure to be adopted for preparing and filing an application in that court.³⁸

The prosecution should be discriminating about addressing only those bail concerns that apply in an individual case. In Kane v DPP³⁹ the court observed that “[a]s is becoming an almost standard approach, the Crown has nominated each of the bail concerns listed in ss 17(2)(a)–(d) of the Bail Act as being unacceptable risks” but had then agreed before the court that the bail concerns nominated could be adequately addressed by conditions. In Decision Restricted [2016] NSWSC 215⁴⁰ Harrison J said:

The accused will generally rally material to demonstrate that the level of risk can be minimised. For example, offering security, ensuring reliable accommodation has been arranged and demonstrating a commitment to rehabilitation. More must be done than simply making a submission about these matters — care must be taken that sufficient material is presented to the court to enable it to make the relevant decision. In addition, the accused may also highlight deficiencies in the Crown case, point to procedural issues which may delay any hearing and raise issues of hardship or other subjective matters in favour of their release.

A court must not hear a detention or variation application made by a person other than the accused unless satisfied reasonable notice has been given to the accused: ss 50(5), 51(6). Reasonable notice must also be given to a prosecutor when a variation application is made by a party other than the prosecutor: s 51(7). The court may dispense with notice if satisfied the accused is evading service or cannot be contacted, or that the interests of justice so demand: Bail Regulation 2014, cl 18(4).

Whether notice is reasonable will reflect a variety of circumstances depending on the particular case.⁴¹ The question is not whether the accused has been given reasonable notice of the application, but whether the court or authorised justice is satisfied that such notice has been given.⁴² The assessment as to what is “reasonable notice” in any individual case must have regard to the requirement under s 71 that bail applications be dealt with as soon as reasonably practicable.⁴³ The court in Barr (a pseudonym) v DPP (NSW)⁴⁴ observed that a judge’s determination as to whether reasonable notice had been given under s 50(5) was capable of scrutiny on an application for judicial review (although the majority found it unnecessary to determine).⁴⁵

The requirement in s 71 that a bail application be dealt with as soon as reasonably practicable imports a sense of urgency, however it is only as urgent as the limited resources of a court will permit.⁴⁶ In Ahmad v DPP,⁴⁷ where a bail application was adjourned to a date after the date fixed for committal, Campbell J found the matter was not dealt with in accordance with the duty imposed by s 71.

A court must hear any release or variation application made by an accused on a first appearance in substantive proceedings for an offence: s 72(1).

Bail matters are to be decided on the balance of probabilities: s 32(1). The rules of evidence do not apply but a bail authority may take into account any evidence or information it considers credible or trustworthy in the circumstances: s 31(1). Whether that relatively low threshold is met can be determined when the information is provided, or when the bail application is determined.⁴⁸ A bail authority can therefore avoid making “rulings” on whether or not material with apparent relevance should be received, and can instead receive the material and give it “such weight as it considers appropriate in its deliberations”.⁴⁹

However, the fact the court is not bound by the rules of evidence does not mean it is obliged to ignore the policy and rationale underlying them.⁵⁰ This may include scepticism of conclusions which are unsupported by any factual detail. In DPP (NSW) v Mawad,⁵¹ for example, a police officer’s opinion about the respondent’s ability to access weapons and his alleged “criminal connections” was given no weight because of the absence of any detail setting out the basis for the assertions.

Any bail application is to be dealt with as a new hearing, and evidence or information may be given in addition to, or in substitution for, any evidence or information given in relation to an earlier bail decision: s 75. There is no need for the court hearing any subsequent application to be persuaded of any error.⁵² The form of “new hearing” is to be approached with a degree of flexibility, depending upon the circumstances of the particular case.⁵³ Where oral evidence has been called at an earlier hearing, the court should be entitled to take account of reasons and findings made in the earlier proceeding, including findings about the credibility of witnesses.⁵⁴

Second or subsequent release applications (after a refusal of bail) or detention applications (after a grant of bail) are not permitted in the same court unless there are grounds for a further application: ss 74(1)–(2). Section 74 is a conditional prohibition on hearing further applications of the same type, that is, the provision says nothing about constraints on the court hearing a release application after it has granted a detention application (and vice versa).⁵⁵

The available grounds for further applications are summarised in Table 2.

Additional information will be material if the applicant satisfies the court that the previous application may have had a different outcome had the additional information been presented.⁵⁷ A change in surety and the amount offered has been held to constitute “material information” not presented before, although it is always a matter of fact and degree and must be assessed in the context of the seriousness of the charge and all other relevant circumstances.⁵⁸

It has been found the result of plea negotiations could amount to a change in relevant circumstances.⁵⁹ However, where negotiations have merely commenced, which may or may not result in any agreement, this does not satisfy the requirement.⁶⁰ A delay finalising a trial which goes beyond that envisaged at the time of a first application may constitute a change in relevant circumstances.⁶¹ A change of circumstances was also established in Tsintzas v DPP (NSW),⁶² where the accused’s two sons were seriously injured in a motor vehicle accident, and in R v Boatswain,⁶³ where the accused’s terminal liver cancer had progressed to a point where his life expectancy was limited to hours or days.

Section 38(1) of the Act requires a bail authority that refuses bail to immediately record the reasons for refusing bail, including (if refused because of an unacceptable risk) the unacceptable risk(s) identified. Where bail conditions are imposed, the bail authority must immediately make a record of the reasons why bail was not granted unconditionally, and set out the bail concern(s) identified: s 38(2). This must include reasons for imposing any security requirement or requiring character acknowledgments: s 38(3). Reasons must also be provided for the imposition of conditions other than those requested by an accused: s 38(4).

The strength of the Crown case has a direct bearing on whether an accused has shown cause why their detention is not justified.⁸⁹ In R v Fallon (a pseudonym), Campbell J said:⁹⁰

However, an assessment that the Crown case is strong is not determinative and does not carry the same weight it did under the repealed 1978 Act.⁹¹ A weak Crown case may be relevant to show that detention for a lengthy period of time is not justified on the basis the accused may not be convicted⁹² and has, on its own, satisfied the show cause requirement.⁹³

Further, the assessment of the strength of the Crown case is an impressionistic one,⁹⁴ limited by both the material available to the bail court and the fact it is usually quite distant from the final hearing. The assessment is made in what are essentially summary and truncated proceedings in a busy court list. Ultimately, prosecution witnesses may not give evidence at trial, and if they do, they may not give evidence in accordance with their statements; a different picture may emerge during cross-examination; and a jury, judge or magistrate, may take an adverse view of the demeanour or credibility of a witness during the trial, not contemplated at the bail stage.⁹⁵ Importantly, it should be borne in mind that it is not the role of the bail court to predict, much less definitively determine, how the various issues arising from witnesses and reliability of evidence will be resolved.⁹⁶

In Moukhallaletti v DPP (NSW),⁹⁷ for example, the accused did not show cause why his detention was not justified in circumstances where there was a strong Crown case, in combination with the fact imprisonment was likely if he were convicted and there was a risk he may fail to appear at proceedings.

The length of time spent, and/or to be spent in custody, bail refused is relevant to whether an accused has shown cause.⁹⁸

In R v Cain (No 1),⁹⁹ a case involving serious drug importation charges, Sperling J said:

R v Cain (No 1) was decided under the 1978 Act but delay remains a relevant consideration with respect to the show cause requirement and the case’s continued relevance was referred to by McCallum J in R v Farrell,¹⁰⁰ who added:

Delay in proceedings pending trial or sentence will be significant even where there is a strong Crown case.¹⁰¹ However, significant delay is usually not, of itself, sufficient to show cause.¹⁰² The delay must be assessed in the circumstances of the particular case, not against other cases, and must be considered not simply as a bland number of years, but against the history of the proceedings.¹⁰³

For example, in DPP (NSW) v Boatswain,¹⁰⁴ delay was found to carry greater weight in circumstances where the accused was suffering from a terminal illness and had a short life expectancy. In DPP (NSW) v Zaiter,¹⁰⁵ the delay (almost 2 years between bail being refused and the trial) was largely a result of the time taken for the prosecution to compile and serve its brief of evidence but also because of the accused changing his legal representation. The prospective delay between committal and trial was unremarkable given the heavy caseload then pending in the District Court, but was still concerning and an important factor in determining show cause.

In Fantakis v R; Woods v R¹⁰⁶ the two accused did not show cause why their detention was unjustified despite an expected 4 years, 4 months on remand awaiting trial. Justice Wilson observed that had the delay been entirely attributable to the Crown, or to the court’s inability to offer a timely trial date, the delay would have been of more persuasive significance.

In DPP (NSW) v Hing,¹⁰⁷ a case where the accused was likely to serve 12 months in custody prior to his trial for money laundering offences, the court said:

In R v AC (No 3) (Detention application),¹⁰⁸ the accused demonstrated cause primarily on the basis the refusal of bail would delay his co-offender’s trial. Justice Hamill noted that delay in a joint trial not only affects the accused but the victims and witnesses who have an interest in justice being done expeditiously. His Honour said that while the delay was not determinative, it was one of the many factors leading him to conclude that the combination of circumstances in that case were so unusual that despite the inevitability of a long gaol sentence, the accused should remain on bail.

The inevitability that the accused will be sentenced to a significant term of imprisonment if convicted may also be relevant when determining whether the accused has shown cause.¹⁰⁹ However, a bail application should not be approached on the basis that it would be sensible or expedient for the accused to begin serving an apparently inevitable custodial sentence now rather than at a later point when he or she is duly sentenced.¹¹⁰

Where it is uncertain a custodial sentence will be imposed for the offence or pre-sentence custody is likely to exceed the custodial sentence ultimately imposed, this will also be relevant to the show cause assessment.¹¹¹ For example, in R v McCormack,¹¹² the court found the accused, who was charged with various firearm offences, had shown cause in circumstances where it was by no means certain he would be sentenced to full time custody, the prosecution had decided not to proceed with the charges on indictment but in the Local Court, he had spent 2 months in custody bail refused, was 65 years of age with health issues, and had no prior history of violent offending.

In some circumstances, family vulnerability or hardship may be sufficient.¹¹³ This has included where the accused has children with severe disabilities in need of special care.¹¹⁴ In Mawad¹¹⁵ the Supreme Court and Court of Criminal Appeal found the accused had shown cause, despite the strong and serious Crown case, on the basis of compelling evidence of the particular vulnerability of his family in his absence. His children had severe disabilities including a hearing impairment and autism spectrum disorder.¹¹⁶ Similarly, cause was shown in Tsintzas v DPP (NSW)¹¹⁷ on the basis of the accused’s need to care for his two sons who had been seriously injured in a motor vehicle accident. However, the court noted:

The need for an accused to be free to prepare for their appearance in court or to obtain legal advice are relevant factors in showing cause.¹¹⁸ In Katelaris v DPP (NSW),¹¹⁹ the difficulty of preparing the complex legal defence of “medical necessity” while in custody, in circumstances where there was a possibility the accused would be representing himself and had difficulties accessing legal resources and expert evidence, combined with other factors, satisfied the show cause requirement. Limited English, combined with a lack of suitable translators resulting in difficulties communicating with legal representatives while in custody, has also been a significant factor relevant to the show cause requirement.¹²⁰ Similarly, dyslexia and poor literacy skills have been held to be relevant matters in showing cause on the basis preparation for the trial will be more difficult.¹²¹

The need to be free to prepare a defence requires the court to give careful consideration to how much material needs to be reviewed by the accused themselves.¹²² It will be an unusual case where an accused is able to show cause because of the difficulties in preparing their defence as a result of their incarceration.¹²³ In DPP (Cth) v Heng,¹²⁴ the court was satisfied the respondent’s computer access in custody would meet his requirements and he had not shown that his continued detention was unjustified on grounds of exigencies of defence preparation or otherwise. Similarly, in Decision Restricted [2018] NSWSC 996 ¹²⁵ the court found the accused’s claimed need to be released to assist in de-encrypting hard drives from recording devices for his defence was not sufficient to show cause.

Another relevant factor in determining the show cause requirement is whether the accused is suffering from a life threatening or significant medical condition that could not adequately be managed in or from a correctional facility or would make custody more onerous.¹²⁶ Impending death from disease or injury may also satisfy the show cause requirement.¹²⁷ In DPP (NSW) v Boatswain,¹²⁸ a murder case, the respondent’s terminal liver cancer and relatively short life expectancy significantly contributed to him being able to show cause (although bail was refused because he posed an unacceptable risk of committing another offence and interfering with witnesses).

The opportunity to enter residential rehabilitation, particularly where an accused demonstrates a considerable commitment to rehabilitation and obtaining a bed, is also a relevant factor.¹²⁹ Some courts have observed that where there is a short period of time between the bail application and the sentence date, allowing a person bail to enter a residential rehabilitation program could be perceived as the bail court fettering the sentencing judge’s discretion.¹³⁰ However, there are divergent views on this issue.¹³¹

A lengthy period on remand and separation from a child in the context of disadvantage and deprivation within an Indigenous community (in the circumstances described by the High Court in Bugmy v The Queen),¹³² has been considered a significant factor in showing cause. In R v Alchin,¹³³ McCallum J said:

Once an accused enters a guilty plea or a verdict of guilty is returned, the presumption of innocence ceases to be a consideration. However, the fact of the plea or the verdict itself may still be considered when determining whether an offender has shown cause. In R v Tasker (No 2),¹³⁴ Button J indicated an intention to grant bail for a show cause offence, however upon subsequently becoming aware the accused had pleaded guilty, refused bail. The guilty plea meant the accused was no longer entitled to the presumption of innocence, any weaknesses in the Crown case were irrelevant, there was no chance the accused would be convicted of the less serious alternative offence; and a substantial period of imprisonment was inevitable. Similarly, in DPP (NSW) v Tikomaimaleya¹³⁵ the applicant’s conviction was a central consideration persuading the court that cause had not been shown. The court said:

Other factors which may be relevant to the show cause requirement include:

The term “unacceptable risk” is defined in s 4(1) by reference to s 19.

The meaning of the phrase “unacceptable risk” should be determined by reading the statute as a whole having regard to the context of s 19 and the objects of the Act.¹⁵² Consideration in this way gives practical content to the meaning of the phrase.¹⁵³ The importance of the context in which the phrase “unacceptable risk” is used in particular legislation was considered by the Court of Appeal in Lynn v State of NSW¹⁵⁴ which concerned s 5E(3) of the Crimes (High Risk Offenders) Act 2006. In that case, the court cautioned against using interstate authorities and cases concerning other NSW statutory provisions to interpret the expression and found that the phrase as used in the Bail Act did not assist in construing it for the purposes of the high risk offender legislation. However, Beazley P (with whom Gleeson JA agreed) considered that it was apparent the assessment of an “unacceptable risk” in the context of a bail authority determining whether to grant bail “is both context specific and prescriptive”.

The task of assessing whether there is an unacceptable risk in a particular case for the purpose of s 19 is an evaluative one which involves considering the various bail concerns identified in s 18. It is also impacted by other provisions in the Act: for example, the absence of the rules of evidence, the applicable standard of proof (s 32), and the fact the task may be undertaken by reference to evidence the bail authority considers credible or trustworthy (s 31).

The difficulty of estimating risk has been recognised, but in R v SK; R v DK¹⁵⁵ McCallum J observed that the Act “does not contemplate the absence of any risk if a person is released, but the informed balancing of risk”.

The matters to be considered as part of the assessment of bail concerns are exhaustively listed in s 18(1).¹⁵⁶ These are:

It is recognised that there is a degree of overlap between the factors the court may consider under the show cause requirement in s 16A and the factors to be taken into account when determining unacceptable risk.¹⁵⁷ Consequently, many of the factors to be considered under s 18 have already been discussed in the context of the show cause requirement above at p 12ff. In practice, bail courts tend to deal with issues such as delay and the strength of the Crown case once, without separately addressing them in respect of each test. Each of the matters in s 18(1) is to be given equal priority; no one matter assumes dominant significance.¹⁵⁸ Further, the considerations in s 18 are very much matters of fact and degree upon which minds might reasonably differ¹⁵⁹ and the material going to bail concerns will pull in different directions.¹⁶⁰ Cases addressing some of the more common s 18(1) factors are discussed below.

While the Bail Act does not authorise a court to impose obligations on third parties, in some bail applications the court will make its own assessment as to the willingness and capacity of some third parties to provide supervision of persons on bail.¹⁷⁸ In R v Ebrahimi,¹⁷⁹ Beech-Jones J said that nothing in the Act:

In R v Xi¹⁸⁰ and Lin v DPP (Cth)¹⁸¹ an electronic monitoring condition was imposed to address some of the bail concerns, particularly the risk each accused would fail to appear in court. However, in R v Ebrahimi,¹⁸² Beech-Jones J found that while electronic monitoring mitigated the risk of the accused absconding, it did not eliminate it and the delay between notification of any violation and action being taken by police was such that the accused could leave the jurisdiction. Similarly in R v Salameh,¹⁸³ electronic monitoring could not adequately address the bail concerns that the accused would commit further offences and/or abscond.¹⁸⁴

A bail condition can require security to be provided for compliance with a bail acknowledgment: s 26. Where a person granted bail fails to appear in accordance with their bail acknowledgment, the court has power to make an order forfeiting to the Crown any bail money associated with a bail acknowledgment.¹⁸⁵ “Bail money” is defined in s 4 as money agreed to be forfeited under a bail security agreement. A large surety may, in some instances, mitigate concerns that the accused will fail to appear at proceedings for the offence.¹⁸⁶

The power to vary bail conditions is set out in Pt 5. On an application to vary bail, the accused does not need to satisfy the show cause requirement again, but a court may undertake a fresh assessment of any relevant bail concerns and the question of unacceptable risk.¹⁸⁷

In R v Alahmad,¹⁸⁸ Schmidt J refused an application to vary the existing bail by removing the house arrest condition to enable the accused to undertake employment. Her Honour found the accused’s compliance with the stringent conditions did not reflect a reduced risk, but indicated the conditions had kept him from situations where he would be tempted to breach the most important bail condition, that he be of good behaviour. Similarly in R v Lazar,¹⁸⁹ Lonergan J refused an application to vary the “commercial financial dealing” bail conditions imposed, finding they were reasonably necessary to address the bail concern that the accused would engage in further serious offending in the way he conducts commercial financial dealings, and were relevant, reasonable and proportionate to the offences for which bail was granted.

The Commonwealth has had special provisions with respect to bail for alleged terrorism offenders since June 2004.

Section 15AA of the Crimes Act 1914, provides that there is a presumption against bail for a person charged with, or convicted of, an offence covered by s 15AA(2)¹⁹⁰ or s 15AA(2A)¹⁹¹ of the Act unless the bail authority is satisfied that exceptional circumstances exist to justify bail.

If the offender is a child, when a court is determining whether exceptional circumstances exist to rebut the presumption against bail, while the best interests of the child are a primary consideration, the protection of the community is the paramount consideration: s 15AA(3AA).

Section 22A(1) of the Bail Act 2013 provides that unless exceptional circumstances exist, a bail authority must refuse bail for:

If the offence is a show cause offence, the exceptional circumstances test applies instead of the show cause requirement in s 16A: s 22A(2).

At the time of publication of this paper, no bail decisions had been made under s 22A of the NSW Act since it came into force in December 2016. However, it was noted by the Attorney General (NSW), referring to the “exceptional circumstances” test under s 22A that “New South Wales courts may find guidance in decisions under the Commonwealth provisions”.¹⁹³

The onus is on the accused to establish that exceptional circumstances exist.¹⁹⁴ It has been recognised by the courts to be an extremely high hurdle.¹⁹⁵ If the accused discharges that onus, the prosecution then bears the onus of establishing an unacceptable risk.¹⁹⁶

“Exceptional circumstances” is a flexible concept.¹⁹⁷ It cannot be determined by reference to any fixed category or class of case; regard must be had to the facts and circumstances of each case which may include the accused’s personal or subjective circumstances and the circumstances relating to the strength or weakness of the Crown case.¹⁹⁸ The accused must demonstrate a situation which is out of the ordinary in some way and which justifies the adjective “exceptional”.¹⁹⁹ Circumstances will not generally be exceptional unless unusual, uncommon, atypical or abnormal.²⁰⁰ Justice Harrison in R v Naizmand²⁰¹ noted that “what are looked for are circumstances that are or that appear to be an exception to what normally or regularly occurs, whatever may be their particular or defining characteristics”.

In the Victorian case of Re Kaya,²⁰² it was said that while delay, of itself, was capable of giving rise to exceptional circumstances, whether or not a particular length of delay was exceptional must be viewed in the particular circumstances of the case, including the nature of the charged offence. Terrorism cases of their nature are likely to be long and involved, and in Kaya the delay (in this case 18 months to 2 years) was said not to give rise to an exceptional circumstance given the case involved six co-accused.

Youth is a relevant consideration when assessing exceptional circumstances.²⁰³ Justice Hall in R v NK²⁰⁴ acknowledged that s 15AA(1) of the Crimes Act 1914 (Cth) operates notwithstanding particular State provisions relating to juveniles (including the Bail Act), but stated that an accused’s youth is a potentially important consideration in assessing exceptional circumstances under s 15AA(1), in particular the possible vulnerability of youth to adult persuasion or influence.²⁰⁵ Exceptional circumstances were found in R v NK²⁰⁶ on the basis of the accused’s vulnerability arising from youth, particularly given the material which was prima facie capable of supporting an inference that two adults sought to engage, utilise or influence the underage accused in giving effect to the enterprise or objective they had in mind.

In AB v R (Cth)²⁰⁷ a number of matters in combination, including a weak Crown case and a variety of subjective factors, established exceptional circumstances under s 15AA(1).

The powers of a police officer with respect to the action they may take where they believe, on reasonable grounds, that there has been a breach of bail are set out in s 77(1). These include the power to issue a warning or to arrest the person without a warrant. It is preferable that a police officer first consider alternatives in s 77(1) before arresting a person for a suspected breach of bail.²³² However, not every case of a failure to consider all of the options available for a breach of bail will render an arrest improper. The circumstances and facts that led to the failure to consider the other options to arrest must be taken into account. For example, if there is insufficient time in an urgent situation, it may not be improper for a police officer not to consider every other option available under s 77.²³³

Where bail has been granted to a person who has been sentenced to imprisonment and the execution of the sentence has been stayed in the circumstances identified in s 77A(1),²³⁴ a court may issue a warrant for the person’s arrest if they fail to appear.

Under s 79(1), a person who, without reasonable excuse, fails to appear before a court in accordance with a bail acknowledgment is guilty of an offence. The maximum penalty available is the maximum penalty for the offence for which bail was granted, subject to the qualification that imprisonment is not to exceed 3 years and a monetary penalty is not to exceed 30 penalty units: ss 79(3)–(4). The onus is on the person granted bail to prove reasonable excuse: s 79(2).

A NSW Bureau of Crime Statistics and Research study published in 2018,²³⁵ found around half of the bail breaches in NSW involved further offending while on bail. The most common offending being breaches of an apprehended domestic violence order (46.5%), “other driving offences” (14.6%), domestic violence-related assault (13.5%), harassment, threatening behaviour and private nuisance (12.8%) and possession and/or use of illicit drugs (10.1%). Breach of bail by further offending was strongly predictive of bail refusal, with 48.2% of defendants being refused bail where the breach involved further offending only. Where the defendant committed a technical breach only (that is, by breaching specific bail conditions) bail was refused in 19.7% of cases. The most common bail condition breached was reporting to police (18.1%).