24Criteria to be considered in bail applications

24 Criteria to be considered in bail applications (1) Subject to section 24A, in making a determination as to the grant of bail to an accused person, an authorised member or a court must take into consideration so far as they can reasonably be ascertained the following matters only: (aa) the risk (if any) to the safety of the community that would result from the accused person's release on bail; Bail Act 1982 19 (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 by the history and details of the person's residence, employment and family situations and, if known, the person's prior criminal record; and (ii) any previous failure to appear in court pursuant to a recognizance of bail entered into before the commencement of this section or pursuant to a bail undertaking; 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; (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 (iiia) any needs of the person relating to: (A) any cognitive impairment, as defined in section 6A(2) of the Mental Health and Related Services Act 1998 of the person; or (B) any mental impairment, as defined in section 43A of the Criminal Code of the person; and (iiib) whether or not the person is a youth; and (iiic) any needs relating to the person's cultural background, including any ties to extended family or place, or any other cultural obligation; and Bail Act 1982 20 (iv) whether or not the person is, in the opinion of the authorised member 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; (c) the risk (if any) that the accused person would (if released on bail) interfere with evidence, witnesses or jurors; (d) the risk (if any) that the accused person would (if released on bail) commit an offence, a breach of the peace, or a breach of the conditions of bail; (e) the risk (if any) that would result from the accused person's release on bail to the safety or welfare of: (i) the alleged victim of the offence; or (ii) the close relatives of the alleged victim; or (iii) if the alleged victim is a child – any person (other than a close relative) who has the care of the child; or (iv) any other person whose safety or welfare could, in the circumstances of the case, be at risk if the accused person were to be released on bail; (f) whether a domestic violence order is in force against the accused person; (g) without limiting paragraph (e), the risk (if any) that the accused person would (if released on bail) commit domestic violence, including domestic violence against the alleged victim; (h) whether the risk of the accused person committing domestic violence if released on bail could be mitigated by: (i) imposing a bail condition; or (ii) making a domestic violence order under the Domestic and Family Violence Act 2007. Note for section 24(1)(aa) Under section 7A(2AA), the matter mentioned in this paragraph is the paramount consideration in determining whether bail should be granted to a person accused of an offence to which section 7A applies. Note for section 24(1)(b)(iiic) When considering bail, an authorised member or court must have regard to section 15AB(1)(b) of the Crimes Act 1914 (Cth). Bail Act 1982 21 (2) For this section, the authorised member or court may take into account any evidence or information which the authorised member or court considers credible or trustworthy in the circumstances, including hearsay evidence. (3) In assessing risks to others that could result from the release of an accused person on bail, the authorised member or court must have regard to risks of the following kinds: (a) a risk of violence or intimidation; (b) a risk of property damage; (c) a risk of harassment; (d) any other risk to safety or welfare. (3A) In assessing the risks to others under subsection (3), the authorised member or court must consider the following: (a) the previous, current or proposed living arrangements for an alleged victim and for the accused person (assuming the accused person's release on bail); (b) whether those arrangements include or would include their living in unreasonably close proximity to each other. (4) If the alleged victim of an offence is a child, or the alleged offence is a serious sexual offence or a serious violence offence, the safety and welfare of the alleged victim must be considered with particular care. (5) In regard to a child's safety and welfare, the following matters are to be considered: (a) the child's age; (b) the age of the accused person; (c) any familial relationship that may exist between the child and the accused person; (d) the living arrangements for the child and for the accused person (assuming the accused person's release on bail); (e) the desirability of preserving the child's living arrangements and family and community relationships; (f) the emotional as well as the physical wellbeing of the child; (g) any other relevant matter. Bail Act 1982 22 (6) If an alleged victim expresses concern to the prosecutor that the release of the accused person on bail could lead to a risk to the alleged victim's safety or welfare, the prosecutor must, wherever practicable, inform the authorised member or court about that concern and the reasons for it. (7) In assessing the risk of the accused person committing domestic violence if released on bail, the authorised member or court must, if practicable, consider the opinion (if any) of the alleged victim on whether or not bail should be granted.