Page 25 - Week 01 - Tuesday, 15 February 2011
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to refuse bail then the accused can make a second application in the Magistrates Court as of right. Again, the court then makes a decision.
If the accused is again refused bail, the accused must show that there has been a change of circumstances before being able to make a further application for bail, which must also be in the Magistrates Court. This is classed as a bail review. Again, the Magistrates Court makes a bail decision provided that it is satisfied that a relevant change of circumstances has occurred.
The accused has now had the issue of bail considered by the Magistrates Court on three occasions. This approach will ensure that the issue of bail is fully explored in that court. In the event that bail is again refused, the accused person may then apply to the Supreme Court for bail provided that a further change of circumstances can be demonstrated.
I will now turn to a slightly different scenario to explain the interaction between the jurisdictions of the court when cases move from the Magistrates Court to the Supreme Court. In this example an accused person’s case is committed from the Magistrates Court to the Supreme Court for trial.
The accused makes their first application for bail in the Magistrates Court and the Magistrates Court makes a decision to refuse bail. The case against the accused progresses. No further applications for bail are made in the Magistrates Court. The accused is ultimately committed to stand trial in the Supreme Court.
The accused is now before the Supreme Court and, because the entitlement to make a second bail application in the Magistrates Court has not been used, a second bail application can be made to the Supreme Court. The Supreme Court makes the bail decision.
If the accused is again refused bail by the Supreme Court, he or she will need to satisfy the change of circumstances threshold issue before any further bail applications can be considered.
It is important to note that in this scenario the right to a second bail application is preserved even though it has not been used in the Magistrates Court. This ensures that an accused person is not disadvantaged by their case moving to the superior court.
These examples illustrate how the new processes will work to encourage full consideration of bail issues in the Magistrates Court before the Supreme Court is engaged.
I would like to highlight the fact that these reforms place legally represented accused people on an equal footing with unrepresented accused. Under the current Bail Act unrepresented accused are already entitled to a second bail application without restriction. In order to have this additional entitlement preserved under the new provisions, the reforms would have had to give unrepresented accused people a third bail application as of right. This point was carefully considered, but the government has taken the view that to do so may encourage accused people to delay acquiring
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