Page 5633 - Week 13 - Thursday, 18 November 2010
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the key stakeholders agreed would be the most effective to address the problem was to allow accused people two bail applications without restriction in the Magistrates Court. It is this concept which forms the basis of the reforms in this bill.
The primary reform introduces a right to two applications for bail by an accused person in the Magistrates Court. This means that on both the first and second occasions that an accused person applies for bail they can put before the Magistrates Court any argument, information or evidence that is relevant, whether or not the court has heard that information previously. This is in contrast to the present situation which requires a legally represented applicant to have something new to put before the court that is relevant to bail before applying to a court for bail again. This reform will result in better informed bail applications which in turn will mean that the Magistrates Court will be in a position to make a more considered bail decision.
The remainder of the reforms relating to bail applications and review of bail decisions have been formulated to support this main reform. The provisions of the Bail Act 1992 provide two routes for accused people to bring the issue of bail before a court. The first route is contained in part 4 of the Bail Act which provides the procedures for the grant of bail. The second route is contained in part 6 which provides the procedures in relation to the review of bail decisions. There is a degree of overlap in these provisions which has meant that the reforms must encompass both routes for bail in order to operate effectively.
The two notable reforms are, first, an accused person will generally be obliged to use both their two applications in the Magistrates Court and to have applied for a review of the refusal of bail in the Magistrates Court before they will be able to apply to the Supreme Court. This will ensure that the issue of bail is explored in the Magistrates Court on three separate occasions before the matter can be listed in the Supreme Court.
Second, after the initial two applications, an accused person will need to establish that since the most recent application either there has been a change of circumstances relevant to the granting of bail or fresh evidence or that information relevant to the granting of bail has become available. This is known as the “change of circumstances” test and alters the current test by removing the requirement that any change be “significant”. This reform reflects the developments in approach of the Supreme Court in relation to bail decisions as is appropriate in a human rights compliant jurisdiction.
It is important to note that these measures strike an appropriate balance between allowing an accused person access to the Supreme Court while ensuring that, where possible, bail is resolved in the Magistrates Court.
In addition to the changes for accused people, the reforms to the review of bail decisions will apply equally to the prosecution. This means that, if the prosecution wish to apply for a review of a Magistrates Court bail decision, they must apply firstly to the Magistrates Court. They must also establish a change of circumstances on the basis of the reduced threshold before the application can proceed. Only once the matter has been heard in the Magistrates Court can the prosecution apply further to the Supreme Court, but it must still show a change of circumstances.
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