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  • Bail decisions made by the Court of Criminal Appeal continue to provide precedential value in relation to the interpretation and operation of the Bail Act 2013 (NSW).
  • The decisions explore issues such as the principle of restraint, the nature of the de novo hearing conducted by the CCA in bail applications and the use that can be made of bail decisions made by single judges of the Supreme Court.
  • The length of time an accused person spends on remand is commonly relied upon to show cause why detention is not justified; however, the trial delay must be weighed against the other factors relevant to the issue of showing cause and will not always be determinative by itself.

Over the course of 2016, the Court of Criminal Appeal (‘CCA’) determined a number of applications made under the Bail Act 2013 (NSW) (‘the Act’).  These cases are significant in that they provide appellate-level guidance on the operation and scope of this relatively new piece of legislation.

The following is an overview of the significant bail decisions handed down by the CCA in 2016 and the resulting principles.

‘Exceptional circumstances’

The case of AB v R (Cth) [2016] NSWCCA 191 provided the CCA with the opportunity to consider the issue of ‘exceptional circumstances’ under s 15AA(1) of the Crimes Act 1914 (Cth). This case concerned a release application made by a juvenile charged with three terrorism-related offences. The applicant applied to the CCA for release after being refused bail by Beech-Jones J in the Supreme Court.

The nature of the offences charged meant that the Court was required to consider whether ‘exceptional circumstances’ existed (s 15AA(1) of the Crimes Act 1914 (Cth)) before turning to consider whether the applicant posed an ‘unacceptable risk’ if released from custody under Division 2 of Part 3 of the Act. As the applicant was a juvenile, the ‘show cause’ requirements of the Act did not apply (s 16A(3)).

The applicant relied on the decision of Hall J in R v NK [2016] NSWSC 498 (at [26]) when submitting that exceptional circumstances applied in this case. In that decision, Hall J summarised the principles from the relevant case law in relation to section 15AA of the Crimes Act. Justice Hall held, inter alia, that exceptional circumstances could be constituted by a combination of factors that may include features that are subjective to the applicant.

Further, Hall J held that the youth of an alleged offender was a potentially important consideration when assessing exceptional circumstances.

The applicant relied on a combination of factors to support the submissions that exceptional circumstances existed, including a weak Crown case, the age of the applicant and the length of time the applicant would spend in custody before trial (at [17]).

Justice Hoeben CJ at CL (Campbell and Button JJ agreeing) held that exceptional circumstances existed by virtue of the relative weakness of the Crown case, combined with the other matters relied on by the applicant (at [32]). Bail was ultimately refused on the basis that there was an unacceptable risk that the applicant would commit a serious offence (s 17(2)(b)) and/or that he would endanger the safety of the community (s 17(2)(c).)

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