What is “unacceptable risk” in deciding bail?
Recent changes to the Bail Act mean that people charged with serious offences have to meet more onerous requirements before the Court will consider bail.
The changes are in response to a public outcry over crimes committed by people who were allowed back into the community on bail after they had been arrested and charged with serious crimes such as sexual assault or robbery.
Stacks Law Firm criminal lawyer Jessica Mackay said public anger about people who commit crimes whilst on bail is understandable.
“But at the same time it is important to remember that bail is a fundamental component of a person’s right to be presumed innocent until proven guilty,” Ms Mackay said.
“Typically, a person applying for bail in the Local Court was arrested the day before, so the Court will know nothing about the case and allegations made by police may not yet be supported by hard evidence.
“Courts have a very difficult task in striking the right balance between a person’s right to be presumed innocent, and the importance of protecting the community against potentially dangerous individuals.”
People accused of the most serious offences now have to “show cause” to the Court why being held in custody while awaiting trial is not justified. For other offences, section 19 of the Bail Act’s new stricter guidelines requires the Court to decide whether the charged person presents an “unacceptable risk” to the community.
Such risks include the possibility of endangering the safety of the victim or other individuals, interfering with a witness, being part of an organized crime group, and the accused’s history of complying with previous bail.
The tough new bail conditions in NSW were modeled on similar bail laws in Victoria and Queensland.
Ms Mackay said bail can be vital for an accused person to prepare their defence with help from their lawyer and to receive family support. These changes make it even more important to have expert legal representation in Court.
“Having effective representation is crucial when it comes to bail. It can mean the difference between a charged person being released from custody on bail and having to wait for a long time long in custody, months possibly even years, until their case is finally determined by the Court.”
An experienced criminal lawyer can point out whether the prosecution’s case is strong or not to assist in obtaining bail.
“A skilled lawyer can help applicants for bail explain to the Court the sorts of conditions that the person is willing to abide by to satisfy the Court there is no unacceptable risk,” Ms Mackay said.
For more information please see Who is entitled to get bail?