BAIL
Once a person has been charged with a criminal offence they
are entitled to apply for bail. When at the Police Station,
the authorised officer will make the bail determination. An
authorised officer is an officer of or above the rank of
sergeant or the officer in charge of the police station at the
time. If that officer refuses bail, then the accused must be
brought before the next court for a bail determination to be
made by the court. If the court refuses bail the accused can
force the matter to be adjourned for a period of no longer
than eight (8) days before the bail is reviewed again. The
accused can also appeal to the Supreme Court for a bail
review. In such an appeal, the Supreme Court can impose a bail
on the accused that it thinks fit.
The law with regard to bail is to be found within the Bail
Act (NSW). There are presumptions, either for or against bail.
For minor matters there is a presumption for bail. This right
to bail can be affected by the intoxication of the accused, if
the accused has previously failed to appear before the court
or the person stands convicted of the offence. Section 9
groups offences to which there is a presumption in favour of
bail. With regard to Domestic Violence Offences this
presumption in favour of bail is removed. With regard to these
offences there is no presumption either in favour or against
bail being granted. Section 8A of the Act creates a
presumption against bail for major drug offences.
When an accused is charged with an offence he or she is
entitled to be handed a Form 1 and a Form 2 by the police to
notify them as to the entitlement to bail. Further, if the
court or the authorised officer either refuses bail, or
imposes a conditional bail, the authorised officer or court
must state the reasons why unconditional bail was not granted
in writing. This again is a safeguard to ensure that a
person's freedom is not interfered with unduly.
The most important section of the Act is section 32 as it
sets out the criteria that the court or authorised officer is
to follow when making a bail determination. No other criteria
can be considered other than what is in that section and the
relevant presumption. Factors that can affect bail are the
person's background, community ties, criminal record and
previous failure to appear before the court. The circumstances
of the offence include its nature and seriousness, severity of
the penalty and MOST IMPORTANTLY whether the person will
appear to answer the charge.
COURT
In NSW there is a hierarchy of courts. The courts are as
follows:
- HIGH COURT
- COURT OF CRIMINAL APPEAL
- SUPREME COURT
- DISTRICT COURT
- LOCAL COURT
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Local Court
Over 90% of all criminal matters are dealt with in the
Local Court. The matters that are dealt with in the Local
Court to finality come under three categories:
- summary charges;
- indictable charges that can be dealt with summarily
without the consent of the accused (Table 2 matters); and
- indictable charges that can be dealt with summarily with
the consent of the accused (Table 1 matters).
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Summary Charges
A summary charge is a charge that can only be dealt with
before a Local Court. With these charges there is no right for
the accused to have the matter heard before a jury. The charge
will be determined before a magistrate without jury who will
decide all issues of both fact and law. Upon conviction of a
summary charge there are avenues of appeal open to an accused.
Such options include an appeal to the District Court on the
basis that the accused is NOT GUILTY. The Judge in the
District Court will then review the evidence to decide whether
the accused is guilty of the offence appealed against or not.
There is also a right of appeal to the District Court on the
basis that the penalty imposed by the magistrate in the Local
Court was too harsh. In these cases the Judge can review the
case and either, increase the penalty, reduce the penalty or
leave the penalty as imposed by the magistrate. On such
appeals the Judge is restricted to the penalty that the
magistrate could impose in the Local Court.
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Indictable charges
These are matters which were previously dealt with in the
District Court as a trial before a jury. However, due to the
costs of such trials the legislators passed legislation that
these matters are to be dealt with as summary matters. These
matters include offences such as assault, stealing and other
property matters where the property value is under $5,000.00.
A list of these offences is contained in Table 2 of the
Criminal Procedure Act NSW. With these matters, only the
prosecution can elect for the matter to be dealt with on
indictment so that the accused will be sent to the District
Court to face trial on those matters. If the matter is dealt
with summarily, in the Local Court, then the maximum penalty
the court can impose is reduced from what the penalty would be
if the matter was dealt with in the District Court on
indictment. A matter finalised in the Local Court can be
appealed to the District Court in the same manner as a summary
offence.
The Table 1 matters are also indictable matters. They are
more serious than the matters in Table 2. Some of the offences
are the same, for example, stealing. However, under Table 1
the limit of the Local Courts jurisdiction is $15,000.00. The
offences in Table 1 are also listed in the Criminal Procedure
Act. The penalties that can apply in the Local Court for
offences that are listed in Table 1 are also restricted under
the Criminal Procedure Act.
One important difference between Table 2 offences and Table
1 offences is that with Table 1 offences both the prosecution
and the defence can elect for the matter to be dealt with on
trial in the District Court. If that election is made, then
the matter is dealt with as an indictable matter.
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Indictable Matters
Where an accused is charged with an indictable matter, or
an election is made for a Table 1 or Table 2 matter the Local
Court still has limited jurisdiction. Initially, when people
are charged they will be brought before the Local Court. A
bail determination may be required to be made by the
court.
If the matter is a plea of guilty, then the magistrate will
read the Police brief of evidence to ensure that there is
sufficient evidence to have the accused committed to the
District Court for sentencing.
If the matter is a plea of not guilty then the Local Court
will set the matter down for a Committal Hearing. This is so
the magistrate can assess the evidence of the Crown to ensure
there is sufficient evidence to commit the accused to a trial
in the District or Supreme Court. If the magistrate is of the
opinion there is not sufficient evidence, he or she will then
discharge the accused from the inquiry they have conducted and
the accused is released. Note the magistrate cannot dismiss
the charge in a committal and it is open to the police to
recharge at a later date or apply for an ex officio indictment
before the District Court. That is, the accused could end up
facing a trial even if the magistrate discharges him or her
from the committal hearing.
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District Court
The District Court, as indicated above, can deal with an
appeal from the Local Court where the appeal is on the basis
that the accused is Not Guilty or that the Penalty was too
severe.
The District Court also conducts criminal trials on
indictable charges after the committal proceedings in the
Local Court have been finalised. In trials, the decision of
guilt is determined by the jury. The Judge determines
questions of Law and instructs the jury on the relevant law.
If the accused is found guilty then the Judge also imposes a
penalty upon the accused.
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Supreme Court
The Supreme Court also can do jury trials as the District
Court can. However, in practice, trials in the Supreme Court
are limited generally to murder trials and some other serious
indictable offences.
The Supreme Court also can determine appeals from the Local
Court on questions of Law or a mixed question of Law and fact.
These appeals are heard before one Justice of the Court. On
the hearing of such an appeal, the Justice can find that the
magistrate was correct or that the magistrate was in error. If
in error, then the Justice can quash a conviction, which means
it is reversed and the accused is found not guilty, or may
order the matter be remitted to the Local Court for further
hearing.
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Court of Criminal Appeal
The Court of Criminal Appeal hears and determines appeals
on questions of Law from the District and Supreme Courts. They
also determine appeals on whether convictions in the lower
courts are safe and satisfactory. The Court of Criminal Appeal
usually has three Justices sitting on the bench when deciding
an appeal but it can be as high as seven on special
matters.
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High Court
The High Court can hear appeals from the Court of Criminal
Appeal on a question of Law only. The High Court normally has
three to seven Justices sitting on the bench when making a
decision on appeal from the Court of Criminal
Appeal.
