The topic of bail frequently comes up in conversations.
But what people don’t realise is that there have been three changes to the bail laws in the past 18 months or so. And they have been fairly significant. Having said that, as simple as one can state at the moment, persons applying for bail fall into two categories:
- The first is what we call show-cause type offences.
- The other is offences where they are not show-cause type offences and in which case the court, the prosecutor, and the defence deal with issues of unacceptable risks in the extent which those risks can be mitigated.
How Bail Works in Show-cause Offences.
Show-cause offences relate to offences that are of the more serious type. In show-cause offences, the responsibilities and the onus is on the person applying for bail to show that the continued detention of the person in custody is unjustified.
So the person applying for bail has that onus of proof. And there are various ways one goes about establishing that the detention is unjustified. For example, the delay caused in or would be caused in the matter proceeding to trial. Quite often that’s anywhere between one year to two years. There can be other subjective factors which would include the weakness of the prosecution case if that’s so.
I recently appeared in a case in the Supreme Court where we were able to show-cause for the person being granted bail. We were able to show in effect that the continued detention of this person was unreasonable largely due to what the judge described as the weakness of the Crown case.
So the weakness of the Crown case is a very important factor in show-cause type offences. There are other reasons. There might be particular exceptional circumstances as to why the person should be released out into the community to deal with the welfare of other people. He or she may be a carer for a particular person or children and that could also be a factor going to showing cause in a particular case.
How Bail Works In Not Show-cause Offences
The other types of matters are matters where there are no show-cause type of offence and therefore both the court, the prosecution, and the defence address the issue of whether there are any unacceptable risks for the person to be out on bail. Unacceptable risks can be as long as you like.
There are various reasons as to, that would amount to unacceptable risks and in which case the defence would be required to point to various bail conditions or factors that could mitigate against these unacceptable risks.
So for example if a risk or bail concern is that a person may not attend court because of a particular type of offence that he may flee the jurisdiction, one can come up with bail conditions that will more or less ensure that person’s attendance at court. That might be the surrendering of a passport. It might be a strict residential address. It might be reporting to police three or four or seven days per week. It may be the involvement of an acceptable person being assuring by lodging a sum of money with the court to ensure that the accused person complies with his or her bail conditions.
These are just some ways in which one can mitigate against an unacceptable risk.
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