Solicitor for the applicant: Ben Aulich & Associates

Solicitor for the respondent: ACT Director of Public Prosecutions

Bail Act 1992 (ACT)

Section 9C

9C Bail for murder and certain serious drug offences

(b) an offence against any of the following provisions of the Criminal Code, chapter 6 (Serious drug offences):

Note A reference to an offence against a territory law includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).

(2) A court or authorised officer must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering -

(a) for an adult - the matters mentioned in section 22 (Criteria for granting bail to adults); or

(b) for a child - the matters mentioned in section 23 (Criteria for granting bail to children).

Section 19(5)

(5) If a court has made a decision in relation to an application for bail by an accused person, a court may only consider a further application for bail by the accused person if -

(a) the accused person was not represented by a lawyer at the hearing of his or her first application to a court for bail in relation to the offence with which the person is charged; or

(i) that since the most recent application to a court for bail there has been a significant change in circumstances relevant to the granting of bail; or

(ii) that there is fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application to a court for bail.

Section 22

(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider -

(a) the likelihood of the person appearing in court in relation to the offence; and

(b) the likelihood of the person, while released on bail -

(i) committing an offence; or

(ii) harassing or endangering the safety or welfare of anyone; or

(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and

(c) the interests of the person.

Examples for par (c)

1 the need of the person for physical protection

2 the period that the person may be held in custody if bail is refused and the conditions under which the person would be held

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) Also, if the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.

(3) In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including -

(a) the nature and seriousness of the offence; or

(b) the person's character, background and community ties; or

(c) the likely effect of a refusal of bail on the person's family or dependants; or

(d) any previous grants of bail to the person; or

(e) the strength of the evidence against the person.

Example

In considering under subsection (1) the likelihood of the person appearing in court in relation to the offence, the court or authorised officer may have regard to whether the person failed to comply with a bail condition previously.

(4) The reference in subsection (1) (b) (i) to an offence includes a reference to an offence against a law of the Commonwealth, a State or another Territory (including an external territory).

Human Rights Act 2004 (ACT)

Section 18

(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.

(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.

(3) Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her.

(4) Anyone who is arrested or detained on a criminal charge -

(a) must be promptly brought before a judge or magistrate; and

(b) has the right to be tried within a reasonable time or released.

(5) Anyone who is awaiting trial must not be detained in custody as a general rule, but his or her release may be subject to guarantees to appear for trial, at any other stage of the judicial proceeding, and, if appropriate, for execution of judgment.

(6) Anyone who is deprived of liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person's release if the detention is not lawful.

(7) Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.

(8) No-one may be imprisoned only because of the inability to carry out a contractual obligation.

Section 28

(1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(a) the nature of the right affected;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

Section 30

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.