Division 1Division 1 Criteria to be considered in bail applications
This Division does not apply to an accused person in relation to an offence, if the person is entitled to be granted bail under section 8 in respect of the offence.
32 Criteria to be considered in bail applications
(1) In making a determination as to the grant of bail to an accused person, an authorised officer or court shall take into consideration the following matters (so far as they can reasonably be ascertained), and the following matters only:(a) the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, having regard only to:(i) the person’s background and community ties, as indicated (in the case of a person other than an Aboriginal person or a Torres Strait Islander) by the history and details of the person’s residence, employment and family situations and the person’s prior criminal record (if known), and(ia) the person’s background and community ties, as indicated (in the case of an Aboriginal person or a Torres Strait Islander) by the person’s ties to extended family and kinship and other traditional ties to place and the person’s prior criminal record (if known),(ii) any previous failure to appear in court pursuant to a bail undertaking or pursuant to a recognizance of bail entered into before the commencement of this section, and(iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty, and(iv) any specific evidence indicating whether or not it is probable that the person will appear in court, and(v) (Repealed)(b) the interests of the person, having regard only to:(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody, and(ii) the needs of the person to be free to prepare for the person’s appearance in court or to obtain legal advice or both, and(iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii), and(iv) whether or not the person is, in the opinion of the authorised officer or court, incapacitated by intoxication, injury or use of a drug or is otherwise in danger of physical injury or in need of physical protection,(v) if the person is under the age of 18 years, or is an Aboriginal person or a Torres Strait Islander, or has an intellectual disability or is mentally ill, any special needs of the person arising from that fact, and(vi) if the person is a person referred to in section 9B (3), the nature of the person’s criminal history, having regard to the nature and seriousness of any indictable offences of which the person has been previously convicted, the number of any previous such offences and the length of periods between those offences, and(b1) the protection of:(i) any person against whom it is alleged that the offence concerned was committed, and(ii) the close relatives of any such person, and(iii) any other person the authorised officer or court considers to be in need of protection because of the circumstances of the case,(c) the protection and welfare of the community, having regard only to:(i) the nature and seriousness of the offence, in particular whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, and(ii) whether or not the person has failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition previously imposed in respect of the offence, and(iii) the likelihood of the person interfering with evidence, witnesses or jurors, and(iv) whether or not it is likely that the person will commit any serious offence while at liberty on bail, but the authorised officer or court may have regard to this likelihood only if permitted to do so under subsection (2), and(v) if the offence for which bail is being considered is a serious offence, whether, at the time the person is alleged to have committed the offence, the person had been granted bail, or released on parole, in connection with any other serious offence, and(vi) if the offence for which bail is being considered is an offence that involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, any prior criminal record (if known) of the person in respect of such an offence.(2) The authorised officer or court may, for the purposes of subsection (1) (c) (iv), have regard to whether or not it is likely that the person will commit one or more serious offences while at liberty on bail if the officer or court is satisfied that:(a) the person is likely to commit the offences, and(b) that likelihood, together with the likely consequences, outweighs the person’s general right to be at liberty.(2A) The following matters are to be considered in determining for the purposes of subsection (1) (c) or (2) whether an offence is a serious offence (but do not limit the matters that can be considered):(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900,(b) the likely effect of the offence on any victim and on the community generally,(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.(3) For the purposes of this section, the authorised officer or court may take into account any evidence or information which the officer or court considers credible or trustworthy in the circumstances and, in that regard, is not bound by the principles or rules of law governing the admission of evidence.(4) In having regard to the details of residence, as referred to in subsection (1) (a) (i), of an accused person who is under the age of 18 years, the fact that the person does not reside with a parent or guardian of the person shall be ignored.(5) The reference in subsection (1) (a) (i) to an accused person’s residence includes a reference to the residential address at which the person may generally be found.(6) This section applies to an offence to which section 8A, 8B or 8F applies, and a grant of bail to which section 8C or 8E applies, but does not prevent consideration of any matter accepted by the authorised officer or court as relevant to the question of whether bail should not be refused.(7) This section applies to a grant of bail to which section 9C or 9D applies, but does not prevent consideration of any matter accepted by the authorised officer or court as relevant to the question of whether bail should be granted under that section.(8) This section does not prevent consideration of the matters required to be considered in imposing an enforcement condition under section 37AA.