Bail Amendment Act 2014 Provisions Commence
Thursday 29 January 2015 @ 2.18 p.m. | Crime
New NSW bail laws have come into effect as of the 28 January 2015. As we have previously reported, the laws are designed to make it more difficult for people accused of serious crimes, such as murder or sexual assault to be allowed bail. The state's laws were in the spotlight last month after it was revealed Monis was granted bail six days after a risk-based system was introduced in May, replacing the presumption against bail for serious offences such as murder.
The New Laws
The new law introduces the concept of a ‘bail concern’ to replace the previous ‘unacceptable risk’ test. Essentially, the bail authority must assess whether or not there is a concern that the accused will fail to appear or commit a serious offence. Any bail concerns are to be considered against a long list of factors including criminal history, likelihood of a custodial sentence, strength of the case and any “criminal associations”.
The new law will also require accused criminals to argue that their detention is not justified, while magistrates have to consider new factors such as whether the accused has links to organised crime. The laws will apply to people accused of crimes that carry a life sentence, involve the sexual assault of a child or if the crime involves use of a firearm.
Application of New Laws
Sydney man Milad Bin Ahmad-Shah Al-Ahmadzai was brought before the Sydney Downing Centre District Court on 28 January on an early trial of the new bail laws. Al-Ahmadzai was charged with the alleged shooting of a 52 year old man at a night club and carried out a ram-raid at the Macquarie shopping centre in a stolen car.
Al-Ahmadzai argued that the crown case against him was “weak” and that the main witness in the case had subsequently admitted under oath that he had given false evidence and that an allegedly incriminating voice recording made by police was "of exceptionally poor quality".
Judge Gordon Lerve did not accept these arguments. He found that the case against Al-Ahmadzai was not weak and that it was up to the jury to decide the reliability of any evidence presented in the case. Applying the new bail rules, which require those accused of serious violent offences to demonstrate why being held in custody while on remand is unwarranted, Judge Lerve rejected the application.
Criticism of New Laws
The NSW Bar Association said the new laws threaten fundamental legal rights. The peak legal body in August said the new changes represented a premature, reactive response to criticism in the media and that nearly 50 per cent of all people charged are acquitted.
Solicitor Hannah Quadrio criticised the law as reversing the onus in favour of bail for certain offences which will result in more people awaiting trial in gaol. She further argues that bail is a conditional liberty enjoyed until alleged offenders are proven guilty. In his light, it should not be treated as reward for good behaviour.
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