With Regard To The Role Of Bail In The Criminal Investigation Process, Evaluate How The 2013 Nsw Bail Laws Balance The Rights Of Offenders, Victims And Society.

2070 words - 8 pages

Legal StudiesThe role of bail laws Assessment Task 1 With regard to the role of bail in the criminal investigation process, evaluate how the 2013 NSW bail laws balance the rights of offenders, victims and society.In the criminal investigation process laws regarding the role of bail must balance the rights of offenders, victims and society. However, in the past the protection of society and the individual have often come into conflict with each other producing the need for these laws to be reviewed and reformed (R v Wilson (1994) 34 NSW LR1, R v Velevski (2000) NSW CCA445; 117A Crim R34). The bail laws have been reformed and the new 2013 NSW Bail laws, it is argued, have amended areas of concern to protect the needs and rights of all parties.When an individual is accused of an offence awaiting trial they can either be held in remand; a period spent in custody awaiting trial at a later date, or the offender may be let out on bail; the temporary release of an accused person awaiting trial, sometimes on particular conditions such as lodgement of a sum of money as a guarantee. The decision to grant bail is made by police or courts and certain conditions may apply, the purpose of this is to ensure the presence of the defendant at trial. However, there are certain restrictions which are applicable when granting bail as specified in the 1978 Bail Act (NSW). For certain offences such as domestic violence or drug trafficking the accused must prove to the court why bail should be granted, this is known as the 'presumption against' bail. Where the presumptions against bail applies the Act states that bail is not to be granted unless the defendant satisfies the court that bail should not be refused. According to a number of Supreme Court decisions, this is not simply a reverse onus provision. In R v Amane Iskandar (2001) 120A Crim R2302, Sperling J referred to previous decisions and stated (at 3:05) "a heavy burden rests on the applicant to satisfy the court that bail should be granted. The strength of the Crown case is the prime but not exclusive consideration…the application must be somehow special if the crown case in support of the charge is strong" (Law link NSW Bureau of crime statistics and research, bail presumptions and risk of bail refusal: an analysis of of the NSW Bail Act, L. Snowball, L. Roth, D. Weatherburn. (July 2010) 'Presumption for' bail on the other hand is granted to everyone unless evidence is presented giving reasons as to why bail should not be. [1: P. Milgate, D. Le Cornu, A. Miller, S. Robinson, T. Kelly, K. Steed (2011) Cambridge Legal Studies HSC, page 40.][2: P. Milgate, D. Le Cornu, A. Miller, S. Robinson, T.Kelly, K. Steed (2011) Cambridge Legal Studies HSC, page 40.]In an attempt to codify and establish a specific method for administrating the laws of bail, the Bail Act of 1978 (NSW) was implemented. Originally the Bail Act set a method to allow most offences to be met with a presumption of bail. However, since the...

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