Criminal Law and Procedure A – LLB1130 – Exam Notes
/ 21 – 9:00 am – 3 Hours
Feedback from Assignment
o Need to work on setting out briefly what the issue is and then explaining the law
o Refer to relevant cases
o Poorly phrased sentences
o Need to define terms (e.g. reasonable grounds – rondo)
o Explain the law then move to application
o Reference briefly the facts
o Explain
1
, Criminal Law and Procedure A – LLB1130 – Exam Notes
/ 21 – 9:00 am – 3 Hours
Criminal Process III
The process as punishment
- Traditionally clear distinction between pre-trial processes (seen as investigatory or administrative) and the trial which
adjudicates guilt only after which is punishment administered
- Feeley, The Process is the Punishment (1979) (7th ed CB 301): pre-trial or other processes prior to determination of guilt
are forms of ‘punishment’ and they precede formal legal adjudication of guilt.
What is bail? What is its purpose?
Before anyone can apply for bail, they need to have been charged with an offence. It is only a charge, nothing has been proven
and the presumption of innocence applies.
Procedural mechanism to ensure a person turns up to court + doesn’t interfere with witnesses, community or commit further
offences
Impact on employment and family life, place individuals yet to face trial in often dangerous and volatile prison environments, and
reduce access to legal advice and support. (TB p 335)
Bail : significant site of contestation (argument)
Bail Act 1978 (NSW): originally a ‘reformist’ Act BUT subject to significant amendments (‘legislative hyperactivity’) -> changed
85 times from the 1980s. designed to ensure people did get bail, moving away from money ensurities to get bail.
Amendments designed to not allow people to get bail in come circumstances.
Problems surrounding the way in which bail was being delivered. Largely it operated in a discriminatory way. understood they
could only get bail if they could place a large amount of money up for ‘assurity’
- Result was an overly complex Act which significantly restricted the right to bail
- Result: massive increase in the remand population
Background: ‘Presumption against bail’: growing list of exceptions in ‘law & order’ campaigns (LRCNSW, Bail)
- 1993 & 1998: murder, other violent offences, other - 2004: terrorism offences
drug offences and domestic violence offences - 2005: offences committed in the course of riots and
- 1995: conspiracy, threats and attempts to murder other civil disturbances
- 1998: drug supply on an ongoing basis of an amount - 2005: offences committed during riots (following
between trafficable and commercial quantity; the disturbances at Cronulla)
manslaughter; wounding with intent to do bodily - 2006: offences committed by persons on lifetime
harm; aggravated sexual assault; sexual intercourse parole; hydroponic cannabis offences and
with a child under 10; and kidnapping manufacturing or producing a commercial quantity
- 2001: a range of exceptions for firearms offences; of prohibited drugs
aggravated sexual assault in company and - 2007: for serious sex offenders accused of
kidnapping breaching a supervision; two additional firearms
- 2003: serious firearms and weapons offences and offences; breach of extended or interim supervision
certain repeat property offenders orders
- 2009: for a controlled member of a declared
organisation associating with another controlled
member of a declared organisation
Massive increase in remand (i.e. unconvicted) jail population
- As at June 2012 nationally: 23.4% of prisoners on remand in custody (ABS 2012: Table 3.1) -> this understates the
figure (Brown 2013)
- NSW in 2010: remand prisoners make up 10,342 out of 14,288 prison receptions or 72.4% of total (NSWLRC 2012:
para 4.6)
- 1989-2011 remand in custody rates have doubled: NSW gone from 22.2 to 49.1%
- 2012 unsentenced prisoners as proportion of total prison population in NSW = 25.7%
Remand rates were rising rapidly with the denial of bail. Remand = before someone is tried or sentenced.
Backstory to the Bail Act 2013 (NSW) (Pre-2014 Amendment)
- Principled reform: NSWLRC, Bail Report 133 (2012)
- Bi-partisan support when passed in May 2013 - set aside for 12 months for training
- Key requirement: consider ‘unacceptable risk’ if ‘unacceptable risk’ can risks be mitigated by conditions:
o If yes: bail
o Only if no: bail refused -> remand
2
, Criminal Law and Procedure A – LLB1130 – Exam Notes
/ 21 – 9:00 am – 3 Hours
- NB: Purposes of Act set out in s 3 including ‘presumption of innocence’ and right to be at liberty
Sent it off to the New South Wales Law Reform Commission, a considered principle process, a series of experts discussing
and reviewing bail acts to write up a report in order to structure a bail amendment.
Bail Act 2013: ‘unacceptable risk’ test
Key requirement was to consider : ‘unacceptable risk’.
- If ‘unacceptable risk’, need to ask whether risks can be mitigated by conditions:
o If yes: bail
o Only if no: bail refused -> remand
NB: Purposes of Act set out in s 3 including ‘presumption of innocence’ and right to be at liberty
Set aside for 12 months for training purposes, the presumption of innocence was at the heart of it and encapsulated in section 3
A ‘good news’ criminal law reform story.
‘…there cause for real hope that, come mid-2014, we will see a new and even progressive bail regime in place in NSW’
David Shoebridge MP, Alternative Law Journal, (2014 132) re the enactment of the Bail Act 2013
Rushed Reform: the Hatzistergos Review & Bail Amendment Act 2014
5 August 2014: John Hatzistergos, Review of the Bail Act 2013 made public 12 recs & three key recs:
- Omit purposes section (containing presumption of innocence) and relocate to preamble (rec 1)
- Collapse 2-stage test re ‘unacceptable risk’ to one (recs 2 – 4)
- Introduce ‘show cause’ offences (rec 6)
13 August 2014: Bail Amendment Bill 2014 read for second time adopting recs – assent on 25/9/14 BUT DID NOT
COMMENCE UNTIL 28 JAN 2015
D Brown & J Quilter, ‘Speaking Too Soon: The Sabotage of Bail Reform in New South Wales’ (2014) 3(3) International Journal
for Crime, Justice and Social Democracy 73–97
There is no offence in for breach of conditions but it is a mechanism for bringing people back before a court therefore their bail
can be revoked
The current bail regime in NSW – Bail Amendment Act 2014 (commenced 28 January 2015)
Preamble
An Act to make provision for bail in connection with criminal and other proceedings.
Preamble
The Parliament of New South Wales, in enacting this Act, has regard to the following:
(a) the need to ensure the safety of victims of crime, individuals and the community
(b) the need to ensure the integrity of the justice system
(c) the common law presumption of innocence and the general right to be at liberty.
The test is on the balance of probabilities, not beyond reasonable doubt for all bail decisions (s 312(1))
Scope of bail decisions
Section 8
(1) The following decisions (each of which is a bail decision) can be made under this Act in respect of a person accused of an
offence:
(a) a decision to release the person without bail for the offence
(b) a decision to dispense with bail for the offence
(c) a decision to grant bail for the offence (with or without the imposition of bail conditions)
(d) a decision to refuse bail for the offence.
Overview of current (as amended) Bail Act 2013: 2 Step/Stage-Approach
Step 1: Show Cause Requirement = look at whether or not a person has been charged with a show cause offence. If they have you
have to determine whether or not their detention is unjustified.
- Is there a show cause offence?
o Yes: has the person shown cause?
o No: refuse bail – Yes: Apply step 2
- No: go to step 2
Step 2: Unacceptable risk test
- Does the person pose an unacceptable risk re s 18 factors (including whether bail conditions can meet those concerns)?
3
, Criminal Law and Procedure A – LLB1130 – Exam Notes
/ 21 – 9:00 am – 3 Hours
o No: bail -> conditional/unconditional release
o Yes: refuse bail -> remand
Show cause requirement
Has the accused person shown cause why his/her detention is not justified
- Yes > apply for unacceptable risk
- No > refuse bail
Unacceptable risk test
Does the accused person present an unacceptable risk. (taking into account section 18 matters)
- Yes > refuse bail
- No > are there any conditions that must be imposed to address any bail concerns in accordance with section 20a
o Yes > conditional release
o No > unconditional release
Step 1: Is the offence a show cause offence?
Section 16B
If it’s not a show cause offence – Go to Step 2 (unacceptable risk test)
Step 1: if ‘show cause’ offence, D must show why detention not justified
Section 16A
(1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why
his or her detention is not justified.
(2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in
accordance with Division 2 (Unacceptable risk test—all offences).
(3) This section does not apply if the accused person was under the age of 18 years at the time of the offence.
4
/ 21 – 9:00 am – 3 Hours
Feedback from Assignment
o Need to work on setting out briefly what the issue is and then explaining the law
o Refer to relevant cases
o Poorly phrased sentences
o Need to define terms (e.g. reasonable grounds – rondo)
o Explain the law then move to application
o Reference briefly the facts
o Explain
1
, Criminal Law and Procedure A – LLB1130 – Exam Notes
/ 21 – 9:00 am – 3 Hours
Criminal Process III
The process as punishment
- Traditionally clear distinction between pre-trial processes (seen as investigatory or administrative) and the trial which
adjudicates guilt only after which is punishment administered
- Feeley, The Process is the Punishment (1979) (7th ed CB 301): pre-trial or other processes prior to determination of guilt
are forms of ‘punishment’ and they precede formal legal adjudication of guilt.
What is bail? What is its purpose?
Before anyone can apply for bail, they need to have been charged with an offence. It is only a charge, nothing has been proven
and the presumption of innocence applies.
Procedural mechanism to ensure a person turns up to court + doesn’t interfere with witnesses, community or commit further
offences
Impact on employment and family life, place individuals yet to face trial in often dangerous and volatile prison environments, and
reduce access to legal advice and support. (TB p 335)
Bail : significant site of contestation (argument)
Bail Act 1978 (NSW): originally a ‘reformist’ Act BUT subject to significant amendments (‘legislative hyperactivity’) -> changed
85 times from the 1980s. designed to ensure people did get bail, moving away from money ensurities to get bail.
Amendments designed to not allow people to get bail in come circumstances.
Problems surrounding the way in which bail was being delivered. Largely it operated in a discriminatory way. understood they
could only get bail if they could place a large amount of money up for ‘assurity’
- Result was an overly complex Act which significantly restricted the right to bail
- Result: massive increase in the remand population
Background: ‘Presumption against bail’: growing list of exceptions in ‘law & order’ campaigns (LRCNSW, Bail)
- 1993 & 1998: murder, other violent offences, other - 2004: terrorism offences
drug offences and domestic violence offences - 2005: offences committed in the course of riots and
- 1995: conspiracy, threats and attempts to murder other civil disturbances
- 1998: drug supply on an ongoing basis of an amount - 2005: offences committed during riots (following
between trafficable and commercial quantity; the disturbances at Cronulla)
manslaughter; wounding with intent to do bodily - 2006: offences committed by persons on lifetime
harm; aggravated sexual assault; sexual intercourse parole; hydroponic cannabis offences and
with a child under 10; and kidnapping manufacturing or producing a commercial quantity
- 2001: a range of exceptions for firearms offences; of prohibited drugs
aggravated sexual assault in company and - 2007: for serious sex offenders accused of
kidnapping breaching a supervision; two additional firearms
- 2003: serious firearms and weapons offences and offences; breach of extended or interim supervision
certain repeat property offenders orders
- 2009: for a controlled member of a declared
organisation associating with another controlled
member of a declared organisation
Massive increase in remand (i.e. unconvicted) jail population
- As at June 2012 nationally: 23.4% of prisoners on remand in custody (ABS 2012: Table 3.1) -> this understates the
figure (Brown 2013)
- NSW in 2010: remand prisoners make up 10,342 out of 14,288 prison receptions or 72.4% of total (NSWLRC 2012:
para 4.6)
- 1989-2011 remand in custody rates have doubled: NSW gone from 22.2 to 49.1%
- 2012 unsentenced prisoners as proportion of total prison population in NSW = 25.7%
Remand rates were rising rapidly with the denial of bail. Remand = before someone is tried or sentenced.
Backstory to the Bail Act 2013 (NSW) (Pre-2014 Amendment)
- Principled reform: NSWLRC, Bail Report 133 (2012)
- Bi-partisan support when passed in May 2013 - set aside for 12 months for training
- Key requirement: consider ‘unacceptable risk’ if ‘unacceptable risk’ can risks be mitigated by conditions:
o If yes: bail
o Only if no: bail refused -> remand
2
, Criminal Law and Procedure A – LLB1130 – Exam Notes
/ 21 – 9:00 am – 3 Hours
- NB: Purposes of Act set out in s 3 including ‘presumption of innocence’ and right to be at liberty
Sent it off to the New South Wales Law Reform Commission, a considered principle process, a series of experts discussing
and reviewing bail acts to write up a report in order to structure a bail amendment.
Bail Act 2013: ‘unacceptable risk’ test
Key requirement was to consider : ‘unacceptable risk’.
- If ‘unacceptable risk’, need to ask whether risks can be mitigated by conditions:
o If yes: bail
o Only if no: bail refused -> remand
NB: Purposes of Act set out in s 3 including ‘presumption of innocence’ and right to be at liberty
Set aside for 12 months for training purposes, the presumption of innocence was at the heart of it and encapsulated in section 3
A ‘good news’ criminal law reform story.
‘…there cause for real hope that, come mid-2014, we will see a new and even progressive bail regime in place in NSW’
David Shoebridge MP, Alternative Law Journal, (2014 132) re the enactment of the Bail Act 2013
Rushed Reform: the Hatzistergos Review & Bail Amendment Act 2014
5 August 2014: John Hatzistergos, Review of the Bail Act 2013 made public 12 recs & three key recs:
- Omit purposes section (containing presumption of innocence) and relocate to preamble (rec 1)
- Collapse 2-stage test re ‘unacceptable risk’ to one (recs 2 – 4)
- Introduce ‘show cause’ offences (rec 6)
13 August 2014: Bail Amendment Bill 2014 read for second time adopting recs – assent on 25/9/14 BUT DID NOT
COMMENCE UNTIL 28 JAN 2015
D Brown & J Quilter, ‘Speaking Too Soon: The Sabotage of Bail Reform in New South Wales’ (2014) 3(3) International Journal
for Crime, Justice and Social Democracy 73–97
There is no offence in for breach of conditions but it is a mechanism for bringing people back before a court therefore their bail
can be revoked
The current bail regime in NSW – Bail Amendment Act 2014 (commenced 28 January 2015)
Preamble
An Act to make provision for bail in connection with criminal and other proceedings.
Preamble
The Parliament of New South Wales, in enacting this Act, has regard to the following:
(a) the need to ensure the safety of victims of crime, individuals and the community
(b) the need to ensure the integrity of the justice system
(c) the common law presumption of innocence and the general right to be at liberty.
The test is on the balance of probabilities, not beyond reasonable doubt for all bail decisions (s 312(1))
Scope of bail decisions
Section 8
(1) The following decisions (each of which is a bail decision) can be made under this Act in respect of a person accused of an
offence:
(a) a decision to release the person without bail for the offence
(b) a decision to dispense with bail for the offence
(c) a decision to grant bail for the offence (with or without the imposition of bail conditions)
(d) a decision to refuse bail for the offence.
Overview of current (as amended) Bail Act 2013: 2 Step/Stage-Approach
Step 1: Show Cause Requirement = look at whether or not a person has been charged with a show cause offence. If they have you
have to determine whether or not their detention is unjustified.
- Is there a show cause offence?
o Yes: has the person shown cause?
o No: refuse bail – Yes: Apply step 2
- No: go to step 2
Step 2: Unacceptable risk test
- Does the person pose an unacceptable risk re s 18 factors (including whether bail conditions can meet those concerns)?
3
, Criminal Law and Procedure A – LLB1130 – Exam Notes
/ 21 – 9:00 am – 3 Hours
o No: bail -> conditional/unconditional release
o Yes: refuse bail -> remand
Show cause requirement
Has the accused person shown cause why his/her detention is not justified
- Yes > apply for unacceptable risk
- No > refuse bail
Unacceptable risk test
Does the accused person present an unacceptable risk. (taking into account section 18 matters)
- Yes > refuse bail
- No > are there any conditions that must be imposed to address any bail concerns in accordance with section 20a
o Yes > conditional release
o No > unconditional release
Step 1: Is the offence a show cause offence?
Section 16B
If it’s not a show cause offence – Go to Step 2 (unacceptable risk test)
Step 1: if ‘show cause’ offence, D must show why detention not justified
Section 16A
(1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why
his or her detention is not justified.
(2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in
accordance with Division 2 (Unacceptable risk test—all offences).
(3) This section does not apply if the accused person was under the age of 18 years at the time of the offence.
4
