Written by  Joseph Burke 2014-02-02

Some implications of recent changes to the Bail Act

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On 20 December 2013, the Bail Amendment Act 2013 came into force. Among other changes, this Act requires that further applications for bail are heard before the same Magistrate who previously heard the bail application. It also includes new requirements for notification of bail applications.

There are some undesirable consequences associated with these changes that affect unrepresented accused.

It has traditionally been the case that where an accused has their first bail application at the Magistrates' Court refused, another bail application can only be heard if new facts and circumstances can be demonstrated. If an accused was unrepresented, then new facts and circumstances can be demonstrated by obtaining legal representation. This remains the case.

Prior to 20 December 2013, the lawyer could quickly lodge a further bail application without notifying the prosecution or the informant if the accused had not previously been represented. But now notice must be served 3 days before the hearing.

This means that if the accused represents themselves unsuccessfully in a bail application, they can expect to spend at least 3 business days in custody even after they get a lawyer on their case.

There is an attempt in the legislation to prevent this outcome. If the court is satisfied the circumstances of the case justify the application being heard sooner and the court is able to hear and determine the matter adequately despite the lack of notice to the other parties, or the other parties agree to waive notice, then the bail application can still be heard.

But justifying the application being heard sooner is a significant hurdle to overcome. At present, the best advice for those facing remand is to not apply for bail at Court unless represented by a lawyer.


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