Can I Apply for Bail More than Once?

Can I Apply for Bail More than Once?

Mr. Trinh was arrested for 158 indictable offences related to computer fraud. He appeared before the Burwood Local Court and applied for bail. His application was refused. He later lodged an application for bail with the Supreme Court. That application was also refused. Trinh then lodged an application for bail before the Court of Criminal Appeal. His application presented an important question that concerns individuals who have been arrested and charged: Can I continue to apply for bail after bail is refused?

Since Mr. Trinh was arrested and seeking release on bail in 2015, his applications were covered by the relatively recent Bail Act 2013 (NSW). Courts in NSW have no power to grant bail except under the circumstances described in the Bail Act 2013. Before we learn what happened to Mr. Trinh, let’s take a look at how bail works in NSW.

Bail Applications

Unless the police release an accused, the accused will generally lodge a bail application with a Local Court shortly after. The Bail Act 2013 requires a bail application to be dealt with “as soon as reasonably practicable.”

In most cases, particularly when the offence is not serious, the court will grant bail unless it decides that there is an “unacceptable risk” that the accused will:

• fail to appear at future court proceedings,
• commit a serious offence if released,
• endanger the safety of victims or the community, or
• interfere with witnesses or evidence.

For example, suppose that Danny and Andrew are both charged with assault. Danny has a good job, owns a home, has minor children who attend a local school, and has never been arrested before. The person Danny allegedly assaulted is a stranger and Danny has no obvious grudge against him. Since Danny has a stable life and substantial ties to the community, he isn’t likely to disappear. The court will probably release Danny on bail because there is only a slight risk that he won’t attend future court appearances or that he will endanger the community or try to intimidate the victim.

Andrew, on the other hand, lost his job, lives in his car, and missed court the last two times he was arrested. Andrew also threatened to harm the man he allegedly assaulted if the man reported the crime to the police. Based on Andrew’s history, a court might think that Andrew will likely flee if he’s released. Based on Andrew’s threat, a court might also think that Andrew poses a serious danger to the person he allegedly assaulted. A court might therefore refuse bail for Andrew.

Release on bail always presents some risk. Before it can find that a risk is unacceptable, the court must be satisfied that no bail conditions can be imposed that would effectively mitigate that risk. In Andrew’s case, the court might consider conditions that require Andrew to maintain a stable residence, to check in with the police daily, and to stay away from the alleged victim.

When certain serious violent or drug offences are charged, the accused must “show cause” why bail should be granted. The law presumes that bail should be refused unless the accused can make a strong showing that he or she will attend all future court appearances and poses no threat to members of the community, including victims and witnesses. Individuals who are arrested for certain new offences while on bail or parole must also “show cause” to be released on bail.

Subsequent Bail Applications- What happens once bail is refused?

Once bail has been refused, the accused can only lodge a new application for bail with the same court under limited circumstances. Those include:

• The accused did not have a lawyer when the bail application was refused but is now represented by a lawyer.
• Bail was refused at the first court appearance for an accused who is under the age of 18.
• The new application is based on important information that was not presented to the court in the previous bail application.
• Relevant circumstances have changed since the previous bail application was made.

The last two exceptions arise when the accused has fresh information that the court did not consider. Fresh circumstances may justify a change of bail when a court refused bail based on facts that have changed or when new facts are presented that were not available during the first bail hearing.

For example, one factor that governs a court’s assessment of risk is the strength of the prosecution’s case. If fresh evidence of innocence comes to light, such as DNA tests or strong alibi witnesses, the court’s assessment of the strength of the prosecution’s case might change. That evidence might persuade the court that a refusal of bail is no longer justified.

Bail Decisions by Higher Courts

When a Local or District Court refuses bail, the accused can lodge a new application with the Supreme Court. For example, the Burwood Local Court refused bail for Mr. Trinh, so he lodged an application for release on bail with the Supreme Court. The Supreme Court gave Mr. Trinh a bail hearing and considered the evidence before refusing bail.

Mr. Trinh could not ask the Supreme Court to consider bail a second time in the absence of fresh circumstances, so he next asked the Court of Criminal Appeal to grant bail. His application caused the Court of Criminal Appeal to consider the nature and scope of its powers under the Bail Act 2013.

As an appellate court, the primary function of the Court of Criminal Appeal is to review convictions and sentences imposed by lower courts. The court decided that, although it has the power to hear a bail application, it is not required to do so. To avoid interference with its primary function as an appellate court, it can decline to consider bail applications under appropriate circumstances.

While the Court of Criminal Appeal must give the accused a “new” bail hearing (as opposed to reviewing the lower court’s bail refusal) if it chooses to consider a bail application, it is not prevented from considering evidence or information presented to the lower courts, or to consider the reasoning employed by the lower courts in refusing bail. The Court of Criminal Appeal may therefore take the lower court decision into account when it decides whether to entertain a bail application.

After considering all of those factors, the Court of Criminal Appeal determined that it might decline to grant a bail hearing when:

• the accused would be entitled to pursue a new bail hearing in the lower court (when, for example, the accused was not represented by counsel during the first bail hearing); or
• the bail application is based on the same facts that were presented to the lower courts and the reasoning of the lower courts is so compelling that the new bail application has no reasonable prospect of success.

At the same time, the Court of Criminal Appeal must keep in mind that the accused is presumed innocent and that detention under those circumstances is a serious matter.

The Court of Criminal Appeal decided to hear Mr. Trinh’s application on its merits. Mr. Trinh was not required to “show cause,” but he was facing trial on 158 fraud offences that allegedly involved $3 million gained by fraud and other $3.5 million of attempted fraud. The evidence appeared to be strong and Mr. Trinh had breached bail four times in the past. While Mr. Trinh had some ties to the community, the risk that Mr. Trinh would flee rather than face a very long sentence convinced the Court of Criminal Appeal that bail should be refused.

The important take-away is that when bail is granted, the accused should always comply with bail conditions. Breaching bail makes it much more difficult to obtain release on bail in future cases. Also, given the difficulty of bringing new bail applications successfully, it is vital to have a lawyer prepare the strongest possible bail argument soon after the lawyer is retained.