A seminar paper presented to the NSW Criminal Defence Lawyer's Association, 16 April 2008by Andrew Haesler SCDeputy Senior Public Defender
The newly amended s. 22A of the
Bail Act 1978 Sec 22A commenced operation on the 14.12.200822A Power to refuse to hear bail application(1) A court is to refuse to entertain an application for bail by a person accused of an offence if an application by the person in relation to that bail has already been made and dealt with by a court, unless:(a) the person was not legally represented when the previous application was dealt with, and the person now has legal representation, or(b) the court is satisfied that new facts or circumstances have arisen since the previous application that justify the making of another application.(2) A court may refuse to entertain an application in relation to bail if it is satisfied that the application is frivolous or vexatious.(3) The Supreme Court may refuse to entertain an application in relation to bail if the bail application comprises a bail condition review that could be dealt with under section 48A by a magistrate or authorised justice or the District Court.(4) Except as provided by subsection (3), this section does not affect the power of a court to review a decision in relation to bail under Division 2 of Part 6 or the right of a person to request such a review.(5) If a court has previously dealt with an application for bail for a person accused of an offence, a further application to a court for bail in relation to that offence may not be made by a lawyer on behalf of that person, unless the lawyer is satisfied that:(a) the person was not legally represented when the previous application was dealt with, or(b) new facts or circumstances have arisen since the previous application that justify the making of another application.(6) In this section, a reference to a court does not include a reference to an authorised justice exercising the functions of a court. has had an immediate and dramatic affect on the number of prisoners and child detainees on remand. Baxter Juvenile detention Centre is full. Kids are doubling up in cells meant for one and are sleeping in the spare visitors rooms. The adult gaol population reached 9,749 prisoners on 23 March 2008, a new record. There are 2,456 people on remand and, on average, over 50 remandees and sentenced prisoners being kept overnight in police cells. Corrective Services'
Offender Population Report for week ending 6 April 2008
Interestingly, on 29 January 2008 there were 2,393 remandees in custody. The increase has not been as great as I had expected, though it is clearly trending upward. When the
Bail Amendment Bill 2007 was introduced the Attorney-General was unapologetic about the increase:
The speech indicated a complete change in philosophy behind the original
Bail Act which when it was introduced in 1978 was premised on a person's right to liberty. Now the basis is the community's right to protection.
The new section circumscribes a Court's ability to hear repeat bail applications. Section 22A says that the court "is to refuse" to entertain a bail application if an application in relation to that bail has already been made and dealt with by a court. Exceptions are limited to cases where the applicant was not previously legal represented, or where new facts or circumstances have arisen which satisfy the court that a new bail application is justified.
A Court can also refuse frivolous or vexatious bail applications. This proviso was previously limited to Supreme Court applications (the old s.22A) and applications for review (s.48(7). Obligations are also imposed on a person's legal representative. A lawyer cannot make an application for bail on behalf of a client where a court has previously dealt with that person's bail application, unless the lawyer is first satisfied that the person did not previously have legal representation or new facts or circumstances have arisen which justify a new bail application. Transitional provisions The amendment to s 8B extends to a grant of bail to a person for an offence committed before 14.12.2007, but only if the person is charged on or after 14.12.2007: s 36. The amendments relating to the court's power to refuse to hear bail applications extends to cases where an accused person's previous bail applications have been dealt with by the court before 14.12.2007: s 37.
The changes were said by the Attorney-General to be balanced. Attorney-General Mr Hatzistergos, Legislative Assembly Second reading Speech, 17/10/2007 The Attorney justified the changes by reference to cost and the problem of unnecessary and repeated applications by well funded litigants. He spoke of the anguish to victims of repeated applications and the danger of Magistrate shopping. He assured parliament that unrepresented applicants would get a second go if they subsequently got a lawyer. What he didn't say was that the changes ignored the practical reality of life in a Magistrate's Court On a bad day a bail Court can have over 50 matters to be dealt with by one Magistrate and one Duty Solicitor: tolerable if you know there is a safety net of a right to a fresh application: intolerable if that right is removed. and the potential impact of an ill prepared application.
The provisions are similar to those in s. 18 of the Victorian
Bail Act 1977. The Victorian Law Reform Commission recently reviewed the Act. Victorian Law Reform Commission, Final Report, 'Review of the Bail Act', August 2007 The Commission recommended some amelioration of the harshness of the provision by allowing a fresh application to be made within 2 days of an initial refusal.
The problem, recognised in Victoria, has already arisen in New South Wales. Where a person is refused bail on a weekend after being represented by a duty Solicitor, Magistrates have held that they cannot hear a further application.
I have been asked to talk generally about the practical operation of the new provision and in particular to look from a defence perspective at strategies, which might ameliorate the impact of the changes..
The Bail Act1978
Bail means, 'authorisation to be at liberty under this Act, instead of in custody': s. 4
Every person arrested has a right or is entitled to or eligible to be granted bail (sections 6, 8 & 13).
After arrest, if police bail is not granted, a person must be brought before a Magistrate or Authorised Justice so that the question of their bail can be determined (s. 20).
When the Act was introduced s. 22 said that there was no limit to the number of applications for bail. The recent changes removed this provision. Then, as now s.22, refers to the Regulations, which make provision for applications. Clause 8 of the Regulations refers to application in relation to:
Section 28 gives or reinforces the inherent power of the Supreme Court to grant Bail. Section 45 gives the Supreme Court power to review bail decisions.
The Forms and Regulations provide for applications and requests for review to be made either when a person is otherwise appearing before a court or by the lodging of the application/request Form.
Applications and Reviews
There is a distinction made in the
Bail Act between 'Applications' and 'Reviews'. Sections 22 and 22A and clause 8 of the
Bail Regulations 1987 govern applications. Division 2 of Part 6 of the
Bail Act and clause 8 and 22 of the Regulations govern Reviews by Courts. When it comes to applying s.22A the distinction between an 'Application' and a 'Review' is critical; for, as I set out below, except in one limited way, s. 22A does not apply to requests for review.
What distinguishes the two concepts is however, unclear. The Act, Regulations and the Forms attached to the Regulations do not always make any meaningful distinction. Often they are treated as synonymous. Similarly, the Authorities I have reviewed do not explore or explain the distinction. 'The Act gives to an accused the right to make any number of applications for bail and that right is contained in s 22(1). An accused can also make applications to have a bail determination reviewed: s 48. Any such application by an accused has, in my view, because of the presence of s 48(1)(b) and s 48(5), the same effect as a fresh application.' Reynolds J in
R v Hammill (1986) 25 A Crim R 316. In
Robert & Turkmani (1997) 97 A Crim R 456, the Court of Appeal remarked on the practice when application pursuant to s.28 was made during a trial of declining jurisdiction unless circumstances justified the reconsideration of bail in which case the application was removed to the Court of Appeal (at 457). In
DPP v Cassaniti [ 2006] NSWSC 1103 Basten JA addressed a number of problems relating to reviewing decisions of a judge at a similar level in the hierarchy but did not discuss the present problem.
The terms 'Application' and 'Review' are often used interchangeably, for example:1. Form 3 puts both applications and requests for review on the same page and uses an identical format for both.2. Form 4 is the Notice that is given about review of Bail decisions. It says (clause 2) that: 'A
bail decision includes a refusal to grant bail, a granting of bail conditionally or unconditionally and a dispensing with bail'.
There are two opposing views about the distinction between 'Application' and 'Review'.
The first is based on the definition of bail in s. 4. I understand Chief Magistrate Henson put this view on 1 March 2008 at a Young Lawyers CLE. An Application for bail is an application for authorisation to be at liberty instead of being in custody.
If bail is refused and a person is denied their liberty then it is argued a fresh Application is required. Any reconsideration of an initial refusal must, because there is a request that the person have their liberty, be an Application for bail.
An Application for bail can thus only be made if the applicant does not already have bail. An example can be found in s.30AA where following a conviction or sentence appeal bail can only be 'granted' in limited and exceptional circumstances.
A Review only becomes necessary once bail is granted, for example: if conditions need to be changed or if the prosecution want the Court to reconsider the decision to grant bail. There can be no review of a decision not to grant bail as that person does not have any bail to be reviewed. Support for this view comes from s.22A itself, as the section would have very little work to do if any bail decision at all could be reviewed without penalty. If a person who was bail refused had a choice; Application or Review, they would always chose Review and thus avoid the strictures of s.22A.
The second alternative is that the scheme of the Act provides precisely for that choice. Apart from an initial Application a person can chose to apply afresh for bail or have their earlier bail decision reviewed. The prosecution can ask for a review (s.48).
The breadth of this power is made clear by s.44 (2)
And s. 45(1):
Support for this proposition also comes from Forms 3 and 4 and Clause 8. If a review were limited to case where a person already had a grant of bail neither Form nor Clause 8 would be set out as they are.
When a Court decides an initial Application, whether it decides to grant bail or refuse it that decision can be reviewed or alternatively a fresh application made. For example: if bail is refused in the Local Court, a fresh Application can be made to the Supreme Court (s. 22) or a request made that the Supreme Court review the original decision (s. 48). Only if there is no bail decision such as when a person comes before a Court or has been convicted or sentenced is it necessary for a fresh Application to be made.
As a general rule where a decision can be reviewed that decision includes both affirmative and negative results. It would be odd indeed if only a decision to grant bail could be reviewed by an applicant but the decision to refuse it required a fresh application.
If my opinion is correct then apart from an initial Application there is little utility in making a fresh Application for a grant of bail. In most cases it would be more opportune to seek a review of the initial refusal, particularly as Reviews are hearings de novo.
Pakis (1981) 3 A Crim R 132 at 136-137 (O'Brien CJ of Cr D):
Hamill (1986) 25 A Crim R 316; &
R v Kaddour & R v Turkmani (2000) 119 A Crim R 204 However, as the scheme of the Act allows this interpretation, the right to a review should not be read down.
Why is the distinction important?
Section 22A applies to both applications and reviews. This is made clear by the reference in s. 22A(1) to 'an application by the person in relation to that bail ..'. Sec 22 is similarly broadly worded.
Prior to recent changes, the old s. 22A restricted appeals to the Supreme Court. (1) Despite section 22 (1) and (2), the Supreme Court may refuse to entertain an application by a person in relation to bail if:(a) an application by the person in relation to that bail has already been made and dealt with by the Supreme Court (however constituted), and(b) the Court is not satisfied that there are special facts or special circumstances that justify the making of the application.(2) Despite section 22 (1) and (2), the Supreme Court may refuse to entertain an application in relation to bail if the bail application comprises a bail condition review that could be dealt with under section 48A by a magistrate or justice or the District Court. It contained a similar first sentence to the current section. It had been considered by Hunt CJ at CL in
R v Kissner, unreported, NSWSC, 17 January 1992, and Justice Studdert in
R v Turkmani & Kaddour  NSWSC 49. Both judges were of the opinion that the section applied equally to applications and reviews.
The new s. 22 takes up the term 'application in relation to bail' and clearly applies to both Applications and Reviews. The new s. 22A must therefore be interpreted on the basis that those decisions were known to the legislature. If this is presumed, s. 22A (4) is puzzling.
Subsection 3 relates only to the Supreme Court's powers to refuse applications that could be better dealt with under s. 48. Section 22A(4) thereby reverses what was said in
Section 22A thus has no effect on Reviews pursuant to Division 2 of Part 6. If this is the case its negative consequences would be considerably reduced.
This interpretation is at odds with the stridency with which the Attorney General spoke when he introduced the
Bail Act Amendment Bill 2007. At no stage did he mention Reviews. He spoke only of bail hearings. Emphasis added
The words of the section are quite clear: s.22A does not affect the power of a court to Review a decision in relation to bail under Division 2 of Part 6 or the right of a person to request such a review except as provided for by s. 22A(3).
Division 2 of Part 6 allows a person who is before a court to ask that their bail determination be reviewed. They can apply also from gaol to be brought to Court for a bail review or request that the Court sit to hear a review. A review can lead to the granting of bail where it has previously been refused or to the variation of bail conditions. The prosecution can also apply for a review. A review is 'requested'(this word comes from s.22A (4) and s. 48(1)(a). A Magistrate can review their own decision (s 44(2)). It appears a Supreme Court judge can do so as well (s. 45(1)).
If the new s.22A only applies to prevent fresh applications for bail where a person has been refused bail they should not to apply again but request a review of the earlier decision. If they do s. 22A will have no effect.
Where does this leave us?
There are two alternatives:
B. A person who has been refused bail can request a review of the decision to refuse bail pursuant to Division 2 of Part 6. Section s.22A has no application to that request.
If option A is preferred; where there has been a refusal of bail, a review is not possible and only a fresh application that complies with s.22A will be allowed to be heard by any Court. As a consequence s.22A will significantly restrict the number of times a person refused bail can seek their release for they (and their lawyers) will be obliged to demonstrate that new facts or circumstances have arisen.
While the argument that a refusal of bail is not amenable to Review is arguable, in my opinion alternative B better fits the scheme of the Act and is to be preferred.
If my opinion is correct, the
Bail Act offers two alternatives when an initial application is refused, either:1. A fresh Application the Court or the Supreme Court, or2. A Review of the original decision by the Court or the Supreme Court.
Section 22A only applies to Applications, as it excludes most reviews from its operation because of the clear words of s. 22A (4).
How should practitioners approach the Court?
Where a person has been refused bail they should be advised to 'request a review' of the previous decision pursuant to clause 8 of the Regulations either in person or by application on Part 2 of Form 3. As long as the request is not frivolous or vexatious a Court is obliged to hear it.
A number of suggestion to avoid the consequences of s.22A have been made by Solicitors who regularly appear in the Local Court. Paul Hayes of the LAC Bail Section has suggested that where police or an Authorised Officer initially refused Bail that for the first Court appearance a request for Review of that earlier decision be made rather than an application. I doubt if the Courts will accept this blatant attempt to subvert the legislative intent of s.22A but it is worth a try. The Court is entitled to say that this is the first 'application' before a Magistrate and is to be treated as such. It is not necessary to attempt by artificial means or language to avoid the consequences of s.22A. The section is quite clear: Applications for bail after a first attempt are to be limited. The legislature has however clearly left the Review option open, by preserving the right of the parties to Review any decision made in relation to bail. Except reviews that could be dealt with pursuant to s. 48A (see s.22A (3) & (4)).
Prior to the amendment, a practice had arisen where practitioners filed an Application for bail or made an Application for bail when in fact what they wanted was a Review of an earlier decision. As a consequence shorthand phrases such as 'bail applied for' and 'bail not applied for -bail refused' were commonly used. Little attention was paid to what Forms, or form of words, were used as it made little difference to the procedures adopted or the outcome.
This must change. Careful consideration must be given to the form in which Applications or Requests for review are made and the Form used if the application or request is in writing. When appearing for a person who has been refused bail practitioners must carefully spell out that they are not applying for bail but 'requesting a review of the earlier determination'.
I have not addressed the vexed question of what is 'new' or 'fresh' evidence. To put it simply those words must be given their ordinary meaning. As the Victorian Law Reform Commission remarked most Magistrates in that State took a fairly liberal view of what was new or fresh. At 106 I trust NSW Magistrates will do the same. Submissions must ask that 'new or fresh' be interpreted broadly and beneficially.
I note that there is a limit on the number of Reviews an applicant can make as Reviews can be refused if they are frivolous or vexatious (s. 48(7)).
Andrew Haesler SC16 April 2008