In this
blog, we will look at the parliamentary reading speech in relation to the new Section
22C of the Bail Act and we will take a deep dive into definitions of
this new section.
‘’High degree of confidence’’– is not defined in the Bail Act. In the Second Reading
Speech to the Bail Amendment on 12 March 2024, the Attorney- General
Michael Daley said:
‘’The Government’s bespoke test
of "a high degree of confidence" is intended to set
an appropriately higher bar for a
young person’s release when they are charged
with repeated serious breaking
and entering and motor theft offending, including
offending whilst on bail.’’
In the Second Reading Speech to
the Bail Amendment5, the Attorney
General stated that the onus is not on the young person (as compared to
the “show cause” test):
‘’If there is an unacceptable
risk, there is no need for the
decision-maker to go on to
consider the new test, as bail
will be refused. In contrast to the "show cause"
requirement, where the onus is
reversed and rests on the accused, the onus for the
new provision will continue to
rest on the prosecution to establish that bail should
not be granted. This is
consistent with the recommendation of the Hatzistergos
review of the Bail Act that
"show cause" and the reverse onus for bail should not apply to children.‘’ (Emphasis added.)
The Attorney General also stated:
‘’When committed by adults, this
type of repeat alleged offending whilst on bail
would attract the "show
cause" test, which would require a bail authority to refuse
bail unless the accused person
could show cause why their detention is not
justified. The "show
cause" provisions do not apply to children and this additional
test does not impose a show cause
requirement or a reverse onus. Instead, the
new test will create an
additional threshold for a bail decision maker, directed at the
consideration of the risk of
certain young persons committing further serious
indictable offences whilst on bail. Bail authorities, including courts, are
responsible for applying this new test and determining whether it has been
satisfied in each individual case. The unacceptable risk test will also continue
to apply.’’ Please see: New South Wales, Parliamentary Debates,
Legislative Assembly, 12 March 2024 (Michael Daley, Attorney
General) <https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/’HANSARD-
1323879322-139003‘>
‘’Importantly, proposed section
22C does not impose an onus of proof on the
accused person in the way that
the show cause test does. It is crucial to
understand that. That is an
appropriate safeguard, given the difficulties young
people experience in navigating
the criminal justice system. This new test targets
only risk of future offending and
not other broader bail concerns which can be
considered as part of the
unacceptable risk test. The reform is intended to ensure
that, if necessary, a young
person can be remanded to address the risk of further
offending. The amendment
introduces a bespoke test that sets a higher bar for a
young person’s release when they
are charged with that type of serious repeat
offending.’’ (Emphasis added.)
During the Parliamentary Debates,
the Attorney-General said:
‘’As I clearly stated in my
second reading speech, the Government does not intend
for the new bespoke bail test to
reverse the onus. However, simply for the avoidance of doubt and to respond to
concerns raised by a number of stakeholders, the New
South Wales Government is moving this amendment to clarify that the requirement
to establish that bail should be refused rests with the prosecution under the
new test in proposed section 22C.’’
For Criminal Defence lawyers representing young person(s) it must be
noted that the new provisions place a significant emphasis on the requirement
that the onus to establish that bail should be refused for the relevant young
person remains with the prosecution as this is a high bar, as it is important
to note that the language used is that the prosecution is to ‘’establish that
bail should be refused.’’
Other important things to note from the new legislation:
A ‘’relevant offence’’
is a:
·
“Motor theft offence” (Crimes Act 1900, ss 154A, 154C, 154F)
·
“Serious breaking and
entering offence” (Crimes Act,
Pt 4, Div 4 offence with a maximum penalty of 14 years
imprisonment or more), or
·
“performance crime offence” (Crimes Act, s 154K, if the underlying offence is a
motor theft offence or serious breaking and entering offence): s 22C(6).
A relevant offence does NOT
include an attempted offence: R v KO [2024] NSWSC 679
at [11].
In such cases, bail must not be
granted unless the court has a “high degree of confidence” the person will not
commit a serious indictable offence while on bail: s 22C(1).
This determination may be made
only after an assessment of bail concerns and whether any conditions could
reasonably address the risk of the person committing a further serious
indictable offence: s 22C(2).
The requirement to establish
that bail should be refused remains with the prosecution: s 22C(3).
The transitional provision for s 22C
in Sch 3, Pt 4, cl 14 Bail Act states the
provision applies retrospectively to offences alleged prior to its commencement
on 3 April 2024 (Sch 3).
In R v RB [2024]
NSWSC 471, Lonergan J held that, in respect of the transitional provision,
the Second Reading Speech makes clear s 22C applies when the offence for which bail is
being sought is alleged to have been committed after the provision commenced:
[39]. The provision expires 12 months after commencement: s 22C(5).
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*This article correctly reflects the Laws of NSW as at 5th June 2024.
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