New Rules for Supreme Court Bail Applications

The rules applying to bail have been in a constant state of flux since 2013, when new bail laws were introduced to replace the old Bail Act of 1978.

While the old Act was complex, confusing and in some respects unfair as a result of the large number of amendments since its inception, many have argued that these problems now apply equally to the new Bail Act – due to several drastic amendments over the last couple of years.

The most notable of these changes is the introduction of ‘show cause’ requirements for a large number of criminal offences.

‘Show cause’ provisions were introduced by the Bail Amendment Act 2014, which commenced on 28 January 2015. It inserted a new section 16A(1), which provides that a person determining bail must refuse release for certain offences and situations unless the applicant can ‘show cause’; ie provide very good reasons for release.

Show cause provisions apply to over 900 offences, including:

• Offences which carry a maximum penalty of life imprisonment under NSW law;

• Certain sexual offences against children;

• Offences involving wounding or grievous bodily harm;

• Serious personal violence offences;

• Some drug, firearms and prohibited weapons offences;

• Serious offences committed while a person is on bail or parole; and

• Serious offences committed while a person is subject to a supervision order, or where a person fails to comply with a supervision order.

In the face of public support for tougher bail laws, it is likely that the new Bail Act will be further amended in the future – making it even harder for people to be released from custody while they await the finalisation of their court case.

A New Practice Direction

Adding to the hoops unconvicted defendants need to jump through to secure their freedom, the Supreme Court of NSW recently issued a ‘Practice Note’ relating to bail applications in that court.

Practice Notes are released by the Chief Magistrate (in the Local Court), the Chief Judge (in the District Court) or the Chief Justice (in the Supreme Court) which aim to provide those involved in the criminal justice system with guidance about court procedures.

They may also impose procedural requirements which parties must follow.

The Notes supplement existing legislation – in this instance, the Bail Act of 2013.

What Does It Say?

A bail application can either refer to an application to release a person from prison (known as a ‘release’ application), or an application by the prosecution to detain a person in custody (known as a ‘detention’ application).

The Practice Note provides imposes procedural requirements when making a bail application in the Supreme Court of NSW. In summary, it directs that:

• Persons applying for bail must file the appropriate form, which is available on the Court’s website – either by completing it at the Court Registry, sending it via email, faxing it, or posting it to the Court. Incomplete applications will not be accepted;

• Once received, the matter will be listed for a Bail hearing; which are typically months down the track due to the immense workload of the Supreme Court. There will also be a ‘call-over’ the week before the hearing, where the case is mentioned in Court by the parties, who can advise the Court of any updates or changes in circumstances – such as whether an adjournment is required, or whether an application is to be withdrawn;

• Lawyers are not able to change the hearing date once it is allocated simply on the basis of personal inconvenience;

• If a bail application will be ready to proceed, the applicant’s lawyer must file a ‘Notice of Readiness to Proceed’ before the call-over date. In some instances, this will mean that the call-over does not proceed;

• Where an applicant wants to withdraw the bail application and informs the Registrar on or earlier than the Friday before the call-over, they may not have to appear at the call-over;

• In cases where it is necessary to adjourn a bail application after the Notice of Readiness to Proceed has been filed and after the call-over date, the applicant’s lawyer must file an affidavit setting out the basis for the adjournment request;

• If a bail application is urgent, an Application for Expedition (form available on the Court website) can be lodged with the Registrar, who will determine whether the matter is to be allocated an early court date. Bail applications involving juveniles will automatically be expedited;

• Any materials in support of a bail application (such as affidavits and expert reports) should be filed with the Registry and served on the other party by 4.00pm the day before the bail hearing.

The new Practice Note comes into effect this Monday, 7th of March – so criminal defence lawyers and prosecutors may wish to familiarise themselves with it before then!