The authors analysed 37,165 cases where defendants were granted or refused bail by a NSW Local Court to determine the impact of presumptions surrounding bail on the risk of bail refusal.
Controls included in the analysis were the defendant's age, gender, Indigenous status, number of concurrent offences, number of prior criminal convictions, a previous conviction for a breach offence, number of days between the date of first court appearance and the date of finalisation, whether the defendant had legal representation in the current case, and the plea in the current case at time of finalisation.
After adjusting for the effects of other factors, the risk of bail refusal was found to be higher for those charged with offences where there was a presumption against bail or where bail should only be granted in ‘exceptional circumstances’.
The risk of bail was also elevated for those with a larger number of prior convictions and/or concurrent offences.
Three main anomalies were noted. Firstly, nearly half of those falling into the ‘exceptional circumstance’ category were on bail at their final court appearance. Secondly, factors such as prior criminal record, number of concurrent offences and delay in finalising a case, exert a much stronger influence on the risk of bail refusal than the presumptions surrounding bail. Thirdly, the bail refusal risk was higher for those charged with offences where there was no presumption for or against bail than for those charged with offences involving a presumption against bail.
The authors comment that -
When the Bail Act was enacted in NSW in 1978 it created a presumption in favour of bail for all offences except violent or armed robbery. Since then, numerous changes have been made to the Act and it is now considerably more complex than it was when first passed. When considering whether or not to grant or refuse bail, courts must now distinguish between four types of cases: (a) cases where there is a presumption in favour of bail; (b) cases where there is no presumption in favour or against bail; (c) cases where there is a presumption against bail; and (d) cases where bail can only be granted in exceptional circumstances.No previous Australian studies have examined the relative importance of various factors in shaping the decision to grant or refuse bail.
