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Digest No. 1649

Bail Amendment Bill 2008

Date of Introduction: 11 December 2008
Portfolio: Justice
Select Committee: not referred, passed through all stages under urgency
Published: 12 December 2008Prepared by John McSoriley BA LL.B, BarristerLegislative AnalystP: (04) 471-9626 (Ext. 9626)F: (04) 471-1250 Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.

Purpose

The aim of this Bill is to amend the Bail Act 2000 (the Act) change the test for retaining a defendant in custody so that where there is any risk of a defendant absconding, interfering with witnesses, or offending while on bail, the defendant may be held in custody

Background

The Bail Act 2000 provided that, in general, where a defendant is charged with an offence which does not carry an automatic right to bail (i.e. “bailable as of right”), that defendant must be released by a court on reasonable terms and conditions “unless the court is satisfied that there is just cause for continued detention”.

This Act was amended by the Bail Amendment Act 2008 to provide that in order for there to be “just cause for continued detention”, the court must be satisfied of the following:

  • that there is a "real and significant risk" that the defendant might not appear in Court as required, interfere with the witnesses or evidence, or offend; or
  • that it would otherwise be unjust to detain the defendant (Section 8(1) of the Bail Act 2000).

Section 8(2) of the Act also sets out the factors for considering the three risks (not appearing in Court as required, interference with witnesses or evidence, or offending) . These are:

  • the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind;
  • the strength of the evidence and the probability of conviction or otherwise;
  • the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;
  • the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant;
  • whether the defendant has a history of offending while on bail, or breaching court orders, including orders imposing bail conditions;
  • the likely length of time before the matter comes to hearing or trial;
  • the possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody;
  • any other special matter that is relevant in the particular circumstances.

Main Provisions

Risk not to be "real and significant"

The Bill provides that when considering whether a defendant should continue to be held in custody, the Court must consider whether there is any risk of the defendant:

  • not appearing in Court as required; or
  • interfering with witnesses or evidence; or
  • offending.
  • The risk is not required to be "real and significant". (Clause 4).

Comment

No change is made to Section 8(2) in relation to the factors to be considered otherwise by the Court in reaching its decision.

Copyright: © NZ Parliamentary Library, 2008
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