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Editors --- "Bail Amendment (Repeat Offenders) Act 2005 (NT) - Digest" [2005] AUIndigLawRpr 49; (2005) 9(3) Australian Indigenous Law Reporter 73

BAIL AMENDMENT (REPEAT OFFENDERS) ACT 2005 (NT)

Act No 34 of 2005

Assented to 22 September 2005, opn on assent

Introduction

The Bail Amendment (Repeat Offenders) Act 2005 removes the entitlement to bail for adult persons with a history of serious offending.

Section 7A of the Bail Act (NT) is amended to enlarge the existing list of offences for which a presumption against bail will be found to exist by adding a provision that deals with re-offending while on bail. It introduces a presumption against bail for a ‘serious violence’ offence if the person accused of the serious violence offence has been charged with committing that offence while on bail for a serious offence and has, within a specified period, been found guilty of a serious offence. If the prior offending was for a ‘serious violence offence’ then the period is 10 years immediately prior to the date of the offence alleged to have been committed whilst on bail, or two years in the case of a ‘serious offence’.

Section 8 of the Bail Act is amended to limit the instances whereby a person is presumed to be entitled to a grant of bail. Where a person is charged with a ‘serious offence’ alleged to have been committed while already on bail for a ‘serious offence’, and has, within the 2 years immediately preceding the date of the ‘serious offence’ allegedly committed whilst on bail, been found guilty of a ‘serious offence’, or in the previous 10 years been found guilty of a ‘serious violence’ offence the presumption in favour of bail is removed.

A new Section 36A is inserted into the Bail Act which allows a stay of a decision to grant bail. This clause provides that if a magistrate or justice decides to release an accused person on bail, a police officer or legal practitioner appearing for the Crown may advise the court that a request for review is to be made to the Supreme Court. While the stay is effective for a maximum of 3 business days after the decision is made there is a requirement that the review be dealt with as expeditiously as possible. However, under s 36A(5) the the Court has been given a discretion to order an extension of the maximum 3 days stay period where it considers that to be appropriate. Further, under s 36A(6), the Court may exercise this power more than once.

The Act may have serious implications for accused Territorians, and especially for Indigenous Territorians, who are over-represented in the law enforcement and justice systems.

Bail Amendment (Repeat Offenders) Act 2005 (NT)

1. Amendment of section 3 (Interpretation)

Section 3(1) –
insert (in alphabetical order)
‘adult’ means a person at least 18 years of age;
‘serious offence’ means an offence punishable by imprisonment for 5 or more years;
‘serious violence offence’ means an offence against any of the following provisions of the Criminal Code that is punishable by imprisonment for 5 or more years:
(a) Part V, Division 2;
(b) Part VI, Divisions 3 to 6A;
(c) section 211 or 212;
(d) another provision prescribed by the Regulations;

2. Amendment of section 7A (Presumption against bail for certain offences)

(1) After section 7A(1)(d) –

insert

(e) a serious violence offence, other than the offence of murder, (the ‘relevant offence’) if –
(i) the person accused of the relevant offence is an adult who is charged with committing the relevant offence while on bail for a serious offence; and
(ii) the person has been found guilty of another serious offence within the period specified in subsection (1A); and
(iii) one or both of the serious offences mentioned in subparagraphs (i) and (ii) are serious violence offences.

(1A) The following periods are specified for subsection (1)(e)(ii):

(a) if the serious offence mentioned in subsection (1)(e)(ii) is a serious violence offence – the period of 10 years immediately preceding the date of the relevant offence;
(b) if the serious offence mentioned in subsection (1)(e)(ii) is not a serious violence offence – the period of 2 years immediately preceding the date of the relevant offence.

(2) After section 7A(2) –

insert

(2A) However, subsection (2) does not apply to a person who –

(a) is accused of an offence to which this section applies; but
(b) is assessed to be suitable to participate in a program of rehabilitation that is prescribed by the Regulations.

3. Amendment of section 8 (Presumption in favour of bail for certain offences)

(1) Section 8(1) –

omit

all the words before paragraph (b)

substitute

(1) This section applies to all offences except the following:

(a) an offence mentioned in section 7A(1);
(aa) an offence against section 181, 192(3), (4), (6), (7) or (8) of the Criminal Code, or section 10 of the Domestic Violence Act, if the person accused of the offence has, within the period of 10 years immediately preceding the date of that offence, been found guilty of any of the following offences:
(i) the offence of murder;
(ii) an offence against section 181, 186, 188 or 192 of the Criminal Code;
(iii) an offence against a law of a State or other Territory or another country that is similar to an offence mentioned in subparagraph (i) or (ii);
(ab) a serious offence (the ‘relevant offence’) if the person accused of the relevant offence –
(i) is an adult charged with committing the relevant offence while on bail for a serious offence; and
(ii) has been found guilty of another serious offence within the period specified in subsection (1A);

(2) After section 8(1) –

insert

(1A) The following periods are specified for subsection (1)(ab)(ii):

(a) if the serious offence mentioned in subsection (1)(ab)(ii) is a serious violence offence – the period of 10 years immediately preceding the date of the relevant offence;
(b) if the serious offence mentioned in subsection (1)(ab)(ii) is not a serious violence offence – the period of 2 years immediately preceding the date of the relevant offence.

(3) Section 8, at the end –

insert

(5) To avoid doubt, if an offence mentioned in subsection (1)(a), (aa), (ab) or (b) is also mentioned in section 7A(1), section 7A applies to that offence.

…

36A. Immediate review and stay of decision to grant bail

(1) This section applies if –

(a) a magistrate or justice decides to release an accused person on bail; and
(b) a police officer or legal practitioner appearing for the Crown immediately informs the magistrate or justice that a request for review of the decision is to be made to the Supreme Court under this section.

(2) The decision of the magistrate or justice is stayed.

(3) The accused person must not be released while the stay of the decision has effect under this section.

(4) The stay of the decision has effect until the earliest of the following:

(a) the Court affirms or varies the decision or substitutes another decision for the decision of the magistrate or justice;
(b) a police officer or legal practitioner appearing for the Crown files in the Court a notice that the Crown does not desire to proceed with the review;
(c) 4 pm on the day that is 3 business days after the day the decision was made.

(5) The Court may extend the time referred to in subsection (4)(c) if the Court thinks that it is appropriate to do so in the circumstances.

(6) The Court may exercise its power under subsection (5) more than once.

(7) The request for the review of the decision must be dealt with as expeditiously as possible.

(8) The review is by way of rehearing.

(9) Evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review.

(10) A decision as varied or substituted under subsection (4)(a) must conform with this Act.

(11) If the person is released because of subsection (4)(b) or (c), the conditions of bail are those that would have applied had the decision not been stayed.

(12) In this section –

‘business day’ means a day other than a Saturday, Sunday or public holiday.

…