bail application (1 Viewer)

[musik_junky]

hey, has anyone done a bail application before? Like for criminal law?

 

[William_Lawry]

all it should contain what bail the peron has received and the reason beind it. i.e the accused was granted conditional bail dur to his/her employment/ties with the community and any bail conidtion in place. i.e the accused is not to appraoch, must report etc

 

[melsc]

Yes, I did one last year, what are you having trouble with?

 

[musik_junky]

should I mention the presumption against bail in s 8 of the bail act (because the client is accused of a drug offence) - even though I'm trying TO get bail for my pretend client? or should I just mention it if the judge brings it up? I'll say that it is merely a presumption, but it can be rebutted if the accused adduces evidence to the contrary. What do you think?

Thanks for your help!!

 

[melsc]

Mention it, meantion it can be rebutted and then put forth your reasons why it should not apply

 

[LaraB]

should I mention the presumption against bail in s 8 of the bail act (because the client is accused of a drug offence) - even though I'm trying TO get bail for my pretend client? or should I just mention it if the judge brings it up? I'll say that it is merely a presumption, but it can be rebutted if the accused adduces evidence to the contrary. What do you think?

Thanks for your help!!

With any moot - it is better to raise things first - that way you get the acknowledgement and in turn, marks, for it... also if you bring it up, you can't be surprised with questions about it.

In general too, if there is a point that you konw works against you - raise it, and offer a counter argument or alternative avenue.

If you just ignore it, it's assumed you didn't think about it or didn't know how to address it and may lose marks.

For the purpose of the bail application assessments, issues regarding presumptions are deliberately placed tehre for that very reason - to make sure that you understand and can put forward and understanding of the difference between "presumptions" and absolute requirements so absolutely raise it.

 

[karen_38]

Hello people, what is the effect of having a presumption against and for bail? Does it change the onus on who should prove what or something or rather?

Thanks

 

[LaraB]

Hello people, what is the effect of having a presumption against and for bail? Does it change the onus on who should prove what or something or rather?

Thanks

Didn't you guys cover this in class? :worried: that's a basic thing and i know we did...

if you're not sure - make sure you ask your teacher - they'll be happy to answer - that way you know the answer you'll get is correct.

This is from the guidelines we got 2 yrs ago:

1. ELIGIBILITY, ENTITLEMENTS AND PRESUMPTION TO BAIL

Under s 10 of the Bail Act, the court may dispense with the requirement for bail (see also ss 11, 12). Section 13 of the Bail Act provides that the court has discretion to grant bail even though the accused is not entitled to bail under ss 8 and 9. READ the charge sheet carefully to determine which offence the accused has been charged with.


1.1 Entitlement to bail

Under s 8 of the Bail Act, an accused has a right to release on bail for offences not punishable by imprisonment or for offences under the Summary Offences Act, 1988 (NSW) that are punishable by a term of imprisonment. There are exceptions including cases where the accused has failed to comply with a bail undertaking previously and where the court believes that the accused is in need of protection or is incapacitated through intoxication.

If an offence falls under s 8, bail must be granted to the accused whether or not it is subject to conditions.


1.2 Presumption against bail for certain offences

Section 8A of the Bail Act creates a presumption against bail in respect of certain drug offences. READ this section carefully and determine which drug offences this provision refers to. If necessary, read the provisions of other statutes referred to in the section.

The effect of a presumption against bail is that the onus is on the accused. Bail will not be granted unless the accused satisfies the court that bail should be granted in the particular circumstances. If the presumption is rebutted, the court may grant bail and attach any conditions that may be appropriate. Generally, in s 8A cases, bail will be refused (R v Masters (1992) 26 NSWLR 450). The major concerns are that the accused will have the financial resources to abscond or leave the jurisdiction and there is potential for interference with witnesses.


1.3 Presumption in favour of bail for certain offences

This section creates a presumption in favour of bail for certain offences with a number of specified exceptions. READ this section carefully to ascertain which offences it applies to. The effect of a presumption in favour of bail is that the onus is on the prosecution to rebut the presumption and persuade the court that bail should not be granted in a particular case. The presumption can be rebutted and the court can refuse to grant bail or grant bail subject to conditions.

Note the exceptions to this provision including murder and domestic violence offences under s 9A (see below 3.4) - these are offences for which there is no presumption for or against the granting of bail. Under s 13, an accused is still eligible for bail even though there is no entitlement to bail under ss 8A and 9.


1.4 Presumption in favour of bail excluded for certain offences

The effect of s 9A is that there is no presumption in favour of bail in certain offences relating to domestic violence (Part 15A Crimes Act). READ this section carefully and determine in what circumstances it applies. If the court is satisfied that it is appropriate, bail may be granted and conditions may be attached (s 13).



Common sense in a way would assist - if the court has a "suggested" path to take that is against your position, you have to prove otherwise. So in short - presumption asgainst = onus on accused, presumption for = onus on prosecution.


I'm sure you wouldn't tgo tten some sort of guidelines so make sure you have a read over them again because that kind of stuff is usually covered by teh guidelines and is usually aligned with the marking criteria

 

[karen_38]

"Note the exceptions to this provision including murder and domestic violence offences under s 9A (see below 3.4) - these are offences for which there is no presumption for or against the granting of bail. Under s 13, an accused is still eligible for bail even though there is no entitlement to bail under ss 8A and 9."

Hmm so does that mean that to have no presumption either way it must be murder or domestic violence offences + s 9B.

I'm sorry if this is a stupid question but I'm confused. S 9 says this section applies to all offences, except: sections blah blah blah... (not under ss 9A + 9B) So if it comes under that except section under s 9 does that mean it is also no presumption either way even though it isn't under ss 9A + 9B? Is this derived from s 13?

Thus, if there's no presumption either way does that mean the onus is on the prosecutor to persuade the court to not grant bail?

Sorry I'm slow T_T Thanks for the help.

 

[karen_38]

Or do I have to prove that the offence charged with is not an exception under s 9? Hence it is an offence under s 9? ><

 

[LaraB]

"Note the exceptions to this provision including murder and domestic violence offences under s 9A (see below 3.4) - these are offences for which there is no presumption for or against the granting of bail. Under s 13, an accused is still eligible for bail even though there is no entitlement to bail under ss 8A and 9."

Hmm so does that mean that to have no presumption either way it must be murder or domestic violence offences + s 9B.

I'm sorry if this is a stupid question but I'm confused. S 9 says this section applies to all offences, except: sections blah blah blah... (not under ss 9A + 9B) So if it comes under that except section under s 9 does that mean it is also no presumption either way even though it isn't under ss 9A + 9B? Is this derived from s 13?

Thus, if there's no presumption either way does that mean the onus is on the prosecutor to persuade the court to not grant bail?

Sorry I'm slow T_T Thanks for the help.

sorry cant remember at the moment... it's been a while lol...

Anyone else remember off hand?

I'm assuming you use the Brown et al. text and teh same annotated legislation? If so - read the commentary and text - from memory it explained it really well.

I'm probably wromg but if you think about it in terms of common sense - Murder etc are serious, so logically, it would make sense for the onus to be on the accused not the prosecutor... But liek i said, i may be wrong.

Also, again i may be wrong - but i thought that DV was against bail under the legislation? thought i remember DV being in it's own section and being different...? Don't know if this is correct or not tho...

 

[karen_38]

Thanks for trying, maybe I'm just digging in to deep ><. We're using the Hayes + Eburn book.

 

[LaraB]

Thanks for trying, maybe I'm just digging in to deep ><. We're using the Hayes + Eburn book.

no probs

oh that's a pity coz the Brown book was really good

 

[musik_junky]

hey thank you Lara and Mel

In the marking guidelines it says "Demonstrates grasp of philosophy of Bail Act". do you know what this could possibly mean

 

[musik_junky]

Common sense in a way would assist - if the court has a "suggested" path to take that is against your position, you have to prove otherwise. So in short - presumption asgainst = onus on accused, presumption for = onus on prosecution.

hey Lara, what happens if there is no presumption either way? then there is no onus?

 

[LaraB]

hey Lara, what happens if there is no presumption either way? then there is no onus?

lol my memory's terrible - i don't have a clue sorry!

That's so sad considering that was the main issue in my bail application lol...

If i find it on my copmuter tomorrow i'm happy to post a copy of teh guidelines we got coz it's bound to be in there somewhere

 

[= Jennifer =]

lol omg 2 years ago wow it was like yesterday but I am trying to recall when there is no presumption either way...i will need to relocate my notes :S but it's cool cause my room needs a clean anyway .

 

[musik_junky]

thanks so much for this - guys rock!!

and when it says show a grasp of the philosophy of the bail act, does it jst mean to show that you understand the provisions? Or should you show an understanding of the history behind the concept of bail.

 

[melsc]

hey Lara, what happens if there is no presumption either way? then there is no onus?

I am not 100% sure, I am trying to remember but isn't it if there isnt a presumption for then its likely they will get bail unless the prosc can convince the court why they shouldnt get bail?

Although generally in assessable tasks like these they give you a presumption against to ensure that you have to work harder and show off more knowledge

 

[musik_junky]

thanks melsc! btw, do you know why the bail act says that the court can consider whether:

the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both

this is under s32. Won't everyone just say that? Or must there be some special reason as to why they need to be free to pepare.