(6) Where a child defendant is released on bail his right to be at liberty is subject to the exercise of the powers in section 17A.
3. Matters relevant to consideration of clause 1(a)
In considering whether a defendant may do any of the things mentioned in clause 1(a), the judicial officer or authorized officer shall have regard to the following matters, as well as to any others which he considers relevant ¾
(a) the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the defendant for it or them, if he is convicted;
(b) the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the defendant;
(c) the history of any previous grants of bail to him; and
(d) the strength of the evidence against him.
3A. Bail where serious offence committed while defendant on bail for another serious offence
(1) Notwithstanding clause 1 or 2 or any other provision of this Act, where ¾
(a) a defendant is in custody awaiting an appearance in court before conviction for a serious offence; and
(b) the serious offence is alleged to have been committed while the defendant was ¾
(i) on bail for; or
(ii) at liberty under an early release order made in respect of,
another serious offence,
the judicial officer or authorized officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless he is satisfied that ¾
(c) there are exceptional reasons why the defendant should not be kept in custody; and
(d) he may properly grant bail having regard to the provisions of clauses 1 and 3 or, in the case of a child defendant, clauses 2 and 3.
(2) Notwithstanding section 7(1), where a defendant is refused bail under subclause (1) for an appearance for a serious offence his case for bail need not be considered again under that subsection for an appearance for that offence unless he satisfies the judicial officer who may order his detention that ¾
(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or
(b) he failed to adequately present his case for bail on the occasion of that refusal.
(3) Where a child defendant is refused bail under subclause (1) he shall be dealt with in accordance with section 19(2) of the Young Offenders Act 1994.
4. When bail to be granted after conviction
In deciding whether or not to grant bail to a defendant who is in custody waiting to be sentenced or otherwise dealt with for an offence of which he has been convicted or awaiting the disposal of appeal proceedings, the judicial officer shall, subject to clauses 5 and 6, consider whether ¾
(a) in the case of a defendant waiting to be sentenced, there is a strong likelihood that he will impose a non-custodial sentence; or
(b) in either case, there are exceptional reasons why the defendant should not be kept in custody,
and shall only grant bail to him if he is satisfied that ¾
(c) in the case of a defendant waiting to be sentenced, at least one of those reasons exists and, in the case of an appellant, the reason mentioned in paragraph (b) exists; and
(d) he may properly do so having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
5. Exception for bail for an appeal under the Justices Act 1902
Clause 4 does not apply to the bail of a person who is awaiting the disposal of appeal proceedings under Part VIII of the Justices Act 1902; such a person shall be deemed for the purposes of this Part to be awaiting an appearance in court before conviction for an offence.
6. Bail of people on community orders, etc.
For the purpose of determining whether clause 4 applies, a person in custody ¾
(a) under section 50, 79, 128, 129 or 132 of the Sentencing Act 1995 in connection with a possible breach of a conditional release order, a sentence of suspended imprisonment or a community order imposed under that Act; or
(b) under section 43 of the Young Offenders Act 1994 in respect of an alleged breach of a youth community based order, an intensive youth supervision order or a conditional release order made under that Act,
is to be taken as not having been convicted of the offence for which the sentence was imposed.
Limitation on period of bail
7. Bail for initial appearance to be for not more than 7 days
In fixing the terms of bail of a defendant for his initial appearance in court for an offence, a justice or an authorized officer shall require him to make the appearance within the period of 7 days commencing on and including the day on which the defendant was arrested for the offence.
8. Bail on adjournment in petty sessions to be for not more than 30 days except by consent
In fixing the terms of bail of a defendant for an appearance in court after an adjournment of proceedings for an offence, a judicial officer sitting as a court of petty sessions or as a member of the Children's Court shall require him to make the appearance within the period of 30 days commencing on and including the day on which the proceedings are adjourned, unless the defendant consents to appear on a later day.
9. Provision as to calculation of time
The periods specified in clauses 7 and 8 shall be calculated to include any Sunday or public holiday.
Part D ¾ Conditions which may be imposed on a grant of bail
1. Conditions as to forfeiture and giving security may be imposed on the defendant and sureties
(1) A judicial officer or authorized officer, on a grant of bail, may impose conditions under this clause if he considers that it is desirable to do so to ensure the performance of the defendant's bail undertaking.
(2) If a judicial officer or authorized officer considers that it is desirable as mentioned in subclause (1), he may in addition to releasing the defendant on his bail undertaking impose any one or more of the following conditions ¾
(a) that the defendant in his bail undertaking agree to forfeit a specified amount of money if he fails to comply with any requirement of his bail undertaking mentioned in section 28(2)(a) or (b)(ii);
(b) that a surety or a specified number of sureties enter into a surety undertaking or surety undertakings whereby he or they agree to forfeit a specified amount or specified amounts of money if the defendant fails to comply with any requirement of his bail undertaking mentioned in section 28(2)(a) or (b)(ii);
(c) that any of them the defendant and the surety or sureties give security of a specified value, including the deposit of a specified amount of cash, for the performance of their respective obligations;
(d) that any of them the defendant and the surety or sureties deposit with a specified officer any specified passbook or document relating to the title to, or ownership of, any account or other asset offered as security for the performance of their respective obligations; or
(e) that any of them the defendant and the surety or sureties, at his or their own expense or otherwise, enter into such mortgage, charge, assignment or other transaction, or take such other step, as may be required, including completion of the necessary documents, to render any security effective and enforceable by the Crown.
(3) The nature and sufficiency of any security, and the documentation therefor, required under subclause (2) shall be determined by the judicial officer or authorized officer who imposed the condition or, if no determination is so made ¾
(a) by the person before whom the bail undertaking is entered into, where the security is to be given by the defendant; and
(b) where the security is to be given by a surety, by any person authorized under section 36 to approve the surety or before whom the surety undertaking is entered into.
(4) When a bail undertaking ceases to have effect as provided in section 34(a) to (d), or upon a defendant being acquitted of a charge under section 51(1) or (2) or discharged from further proceedings therefor, each of them the defendant, or where section 34(b) applies his personal representative, and any surety is entitled to have returned to him any security given under subclause (2).
(5) When a surety undertaking ceases to have effect as provided in section 47(a) to (f), a surety is entitled to have returned to him any security given under subclause (2).
2. Other conditions which may be imposed
(1) A judicial officer or authorized officer, on a grant of bail, may impose conditions ¾
(a) to be complied with before the defendant is released on bail or while the defendant is on bail;
(b) as to the defendant's conduct while on bail; or
(c) as to where the defendant shall reside while on bail,
if he considers that it is desirable for any purpose mentioned in subclause (2), (2b), (3) or (4).
(1a) Without limiting subclause (1), a judicial officer or authorized officer shall, on a grant of bail to a child defendant, consider whether it is desirable for any purpose mentioned in subclause (2) to impose a condition as to ¾
(a) any period in each day during which the child is to remain at a particular place;
(b) any person with whom the child is not to associate or communicate;
(c) any place that the child is not to frequent;
(d) the attendance by the child at a school or other educational institution; or
(e) any other matter,
and the judicial officer or authorized officer may impose any such condition.
(2) Any condition may be imposed under subclause (1) or (1a) to ensure that a defendant ¾
(a) appears in court in accordance with his bail undertaking;
(b) does not while on bail commit an offence;
(c) does not endanger the safety, welfare or property of any person;
(d) does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person; or
(e) as regards the period when the defendant is on trial, does not prejudice the proper conduct of the trial.
(2a) Before imposing a condition on a grant of bail for a purpose mentioned in subclause (2)(c) or (d) a judicial officer or authorized officer is to consider whether that purpose would be better served, or could be better assisted, by a restraining order made under the Restraining Orders Act 1997 and whether, in the case of a judicial officer, to exercise the power in section 63 of that Act or, in the case of an authorized officer, to make a telephone application under that Act.
(2b) Where a judicial officer is of the opinion that the defendant should while on bail ¾
(a) be counselled for a behavioural problem; or
(b) attend a course or programme that may assist with such a problem,
the judicial officer may under subclause (1) impose a condition for that purpose that requires the defendant to ¾
(c) attend a prescribed person to be counselled; or
(d) attend a prescribed course or programme,
that is specified by the judicial officer in the condition.
(3) Where a judicial officer who grants bail to a defendant is of the opinion that the defendant's physical condition ought to be examined the officer may, under subclause (1), impose any condition which the officer considers desirable for the purpose of ensuring that the defendant is examined by a medical practitioner.
(3a) Where a judicial officer who grants bail to a defendant is of the opinion that the defendant's mental condition ought to be examined the officer may, under subclause (1), impose any condition which the officer considers desirable for the purpose of ensuring that the defendant's mental condition is examined including a condition ¾
(a) that the defendant be examined by a medical practitioner or an authorized mental health practitioner (as defined in the Mental Health Act 1996) for the purpose of deciding whether to make a referral under section 29 of that Act;
(b) that the defendant be admitted to an authorized hospital (as defined in the Mental Health Act 1996);
(c) that the defendant be examined by a psychiatrist
(4) Where a judicial officer is of the opinion that a defendant is suffering from alcohol or drug abuse and is in need of care or treatment either on that account, or to enable him to be prepared for his trial, the judicial officer may, under subclause (1), impose any condition which he considers desirable for the purpose of ensuring that the defendant receives such care or treatment, including that he lives in, or from time to time attends at, a specified institution or place in order to receive such care or treatment.
(5) Where a judicial officer imposes a condition for a purpose mentioned in subclause (2b), (3), (3a) or (4), the judicial officer shall cause to be sent to the person who is to counsel or examine the defendant, or the place at which the defendant is to attend, a statement of the reasons for imposing the condition.
(6) Where a condition is imposed under this clause that a defendant shall reside in premises established for the accommodation of persons to whom bail has been granted, that condition shall be deemed to include a further condition that the defendant shall comply with such rules as are for the time being laid down for the maintenance of the good order of those premises, whether such rules are made under section 67 or by the authority responsible for the good order of the premises.
(7) In this clause ¾
}medical practitioner~ means a medical practitioner within the meaning of the Medical Act 1894; and
}psychiatrist~ has the same meaning as it has in the Mental Health Act 1996.
3. Home detention condition may be imposed
(1) A judicial officer may, subject to this clause, impose a home detention condition as a condition on a grant of bail.
(2) A home detention condition shall not be imposed unless the defendant is over the age of 17 years and the judicial officer is satisfied ¾
(a) after considering a report from a community corrections officer about the defendant and his circumstances, that the defendant is suitable to be subject to a home detention condition;
(b) that the place where it is proposed the defendant will remain while subject to the home detention condition is a suitable place; and
(c) that unless a home detention condition is imposed, the defendant will not be released on bail.
(3) A home detention condition is a condition that while the defendant is on bail the defendant shall ¾
(a) remain at and not leave the place specified in the bail record form and in the bail undertaking (or in a notice under section 50E) until the time specified, or deemed by section 31(3) to be specified, in the bail undertaking except ¾
(i) to work in gainful employment approved by a community corrections officer;
(ii) with the approval of a community corrections officer, to seek gainful employment;
(iii) to obtain urgent medical or dental treatment for the defendant;
(iv) for the purpose of averting or minimizing a serious risk of death or injury to the defendant or to another person;
(v) to obey an order issued under a written law (such as a summons) requiring the defendant's presence elsewhere;
(vi) for a purpose approved of by a community corrections officer; or
(vii) on the direction of a community corrections officer;
(b) not leave the State;
(c) comply with every reasonable direction of a community corrections officer;
(d) comply with such of the conditions specified in the list provided under section 24A(4) as may be specified in a notice given under section 50E(b); and
(e) when requested to do so, produce a copy of his bail undertaking and any notice by the CEO (Justice) under section 50E for inspection by a community corrections officer or a member of the Police Force.
[Schedule 1 amended by No. 15 of 1988 s.19; No. 49 of 1988 s.90; No. 33 of 1989 s.18; No. 61 of 1990 ss.14 and 15; No. 83 of 1990 s.15; No. 15 of 1991 s.21; No. 14 of 1992 s.11; No. 31 of 1993 s.9; No. 45 of 1993 s.10; No. 78 of 1995 s.8; No. 69 of 1996 s.3; No. 57 of 1997 s.21(2); No. 54 of 1998 ss.7 and 8; No. 54 of 1998 s.12.]
Schedule 2