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Restrictions on Bail Conditions – To impose or not to impose.

In criminal proceedings in NSW, bail can be granted unconditionally or with conditions. The decision to first grant bail involves considerations provided for in section 32 of the Bail...

Justin Wong

In criminal proceedings in NSW, bail can be granted unconditionally or with conditions. The decision to first grant bail involves considerations provided for in section 32 of the Bail Act 1978. But what about the decision whether to impose conditions or grant bail unconditionally?

Section 37(1) of the Bail Act 1978 is clear that bail should be granted unconditionally unless the court, or police, is satisfied that one or more conditions should be imposed for the purpose of either:

  1. promoting effective law enforcement, or
  2. the protection and welfare of any specially effected person,or
  3. the protection and welfare of the community, or
  4. reducing the likelihood of further offences being committed or promoting the treatment or rehabilitation of the accused.

Just as important is the limit on bail conditions in section 37(2) which restricts conditions being imposed that are more onerous than required having regard to the nature of the offence, the protection and welfare of a specially affected person, or the community.

The scope of these considerations is wide, but they are very important restrictions. The default position under the Bail Act 197 is that bail should be granted unconditionally unless otherwise satisfied. Conditions should not be imposed purely to ensure that an accused attends court, although recently in Lawson v Dunlevy [2012] NSWSC 48, ensuring an offender appears in court was held to fall under the promotion of “effective law enforcement” consideration.

Dunlevy was an important reminder that any condition must only be imposed if it can be supported by one of the section 37(1) considerations. In Dunlevy, the court struck down a bail condition that required an accused to submit to a breath test when requested by a police officer. The Court held that this condition went more to deterring a person from committing a breach rather than protection and welfare of the community, which related to protection from committing further offences, threats or violence against an identified individual.

Importantly, it held that other than the court’s capacity to reconsider bail under section 50 if a breach is alleged, it is not for the court to impose conditions on bail to encourage or ensure compliance with bail.

This is an important distinction and one that must be considered when any bail condition is sought or proposed.