Bail presumptions and the risk of bail refusal

Release date: 21 September 2010

Nearly half of those who should be granted bail only in exceptional circumstances are actually on bail at their final court appearance, the NSW Bureau of Crime Statistics and Research has found.

This is one of three anomalies surrounding the NSW Bail Act uncovered in a study of 37,165 cases where defendants were either granted or refused bail by a Local Court. The study was conducted to assess the effect of the presumptions surrounding bail on the likelihood of bail refusal.

As expected, after adjusting for other factors the Bureau found that the risk of bail refusal was higher for those charged with offences where there was a presumption against bail or where bail should only be granted in 'exceptional circumstances'.

Also, as expected, bail refusal was found to be more likely when the defendant is male; has a larger number of concurrent offences; has a longer prior criminal record; is older or is in a case that is finalised relatively quickly.

Unexpectedly, however, the Bureau found the risk of bail refusal for those charged with offences where is no presumption for or against bail was higher than for those charged with offences involving a presumption against bail.

Furthermore, factors such as prior criminal record, number of concurrent offences and time taken to finalise a case, exert a much stronger influence on the risk of bail refusal than the legal presumptions surrounding bail.

Commenting on why a high proportion of defendants falling into the 'exceptional circumstance' provisions were granted bail, the Director of the Bureau, Dr Don Weatherburn, said that there are two main possibilities.

"The first is that courts may view the 'exceptional circumstances' requirement as excessively severe. The second is that an unexpectedly large number of cases may fit into the 'exceptional circumstance' provision."

"The other two anomalies are harder to explain. It is possible that magistrates are having trouble reconciling the requirements for bail set down in section 32 of the NSW Bail Act with the legal presumptions surrounding bail."

"Many defendants facing charges where bail is supposed to be granted only in exceptional circumstances may meet all the other criteria set down in section 32 of the Bail Act for bail to be granted."

"The NSW Bail Act does not make it clear what a court should do in these circumstances. The Act may require some clarification."

Further enquiries: Dr Don Weatherburn, 9231-9190 or 0419-494-408
Copies of the report: www.bocsar.nsw.gov.au