Domestic violence bail laws in New South Wales

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Those accused of serious DV offences may face a higher threshold to be granted bail & electronic monitoring, where bail is granted.
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The New South Wales Government has proposed tougher bail laws which will see those accused of serious domestic violence offences facing a higher threshold to be granted bail and electronic monitoring, where bail is granted.

Other changes that may be introduced include introducing additional factors that a bail authority must consider when assessing bail concerns, and providing prosecutors with the power to keep alleged offenders behind bars whilst they challenge a magistrate's decision to grant them bail.

The proposed laws were introduced in the Legislative Assembly by Attorney-General, Michael Daley on 15 May 2024, following a spate of alleged domestic-violence related murders in the state.

They are contained within the Bail and Other Legislation Amendment (Domestic Violence) Bill 2024.

Daley explained how "recent horrific events, including the tragic death of Molly Ticehurst in Forbes, have understandably shocked our New South Wales community and highlighted just how critical it is that we have the right measures in place to respond to high-risk domestic violence offending."

Molly Ticehurst was allegedly murdered by her ex-boyfriend, 29-year-old Daniel Billings, only two weeks after he was granted bail at Dubbo Local Court, following being charged with other offences against her. This included three counts of sexual intercourse without consent, four counts of stalking or intimidating Ticehurst and aggravated animal cruelty against her dachshund puppy.

Billings was granted bail by a court Registrar, rather than a Magistrate or Judge. In regional courts on the weekends or public holidays, Registrars are often left presiding over bail courts in the absence of an available Magistrate.

What is a registrar in New South Wales? A court Registrar is a clerk position which has limited powers. They are not required to have a law degree, and their duties largely involve case management and administrative tasks.

The Government is now seeking to ensure that bail decisions on serious offences are made by magistrates and judges. However, before this is introduced, the Government is required to ensure that all regional courts have audiovisual technology so that magistrates and judges can 'dial in' from different locations to facilitate demand.

Police will allege that Billings murdered 28-year-old Ticehurst at her home in Forbes on 22 April 2024. He has remained in custody since being arrested and charged with murder (domestic violence related) and contravening a prohibition/restriction in an Apprehended Domestic Violence Order. His bail was also revoked on the earlier charges.

"Many of the representations I received from Forbes and from all over New South Wales requested that the Government change the law to provide better protections for people who have been subjected to serious domestic violence. Today, as we introduce this bill, we remember Molly Ticehurst. Our Government has heard the community's concerns about domestic violence." explained Daley.

The New Domestic Violence Bail Laws

The Bill primarily seeks to amend the Bail Act 2013 (NSW). Here is a summary of the new proposed laws:

  • It adds further offences to the list of offences to which the show cause requirement applies, namely serious domestic violence offences and coercive control (once the law criminalising coercive control comes into force by 1 July 2024).
  • A "serious domestic violence offence" is an offence under Part 3 of the Crimes Act 1900 (NSW) with a maximum penalty of 14 years imprisonment or more if the offence is committed by a person against an "intimate partner".
  • An "intimate partner" is to a person who is or has been married, a de facto partner, or is in or has been in an intimate relationship, whether this was of a sexual nature.
  • The Bail authority is to consider additional matters when assessing the bail concerns for an accused person, including, whether the accused has engaged in behaviour that constitutes domestic abuse, and in relation to domestic violence offences against an intimate partner-the views of any victim or family member of a victim.
  • Electronic monitoring bail condition must be imposed if an accused person who has been charged with a show cause offence in relation to a serious domestic violence offence (not a coercive control offence) has been granted bail. This applies except if satisfied sufficient reasons exist, in the interests of justice, to justify not imposing the condition.
  • The bail authority's decision to grant an accused person bail for a show cause offence involving a serious domestic violence offence, a coercive control offence, or an offence under Part 3 of the Crimes Act, Division 10, subdivision 2(sexual intercourse without consent, aggravated version of same, and aggravated version of same in company), can be stayed for up to 3 days pending a further supreme court bail application. This gives the Director of Public Prosecutions or NSW Police officer the power to effectively stay a court's decision to grant bail and have it effectively reviewed by the Supreme Court in the hope to refuse the accused person bail.

Currently, the show cause requirement applies to adults accused of certain crimes (i.e., offences involving serious personal violence, firearms, those attracting a penalty of life imprisonment, commercial level drug manufacture, importation, and serious sexual offending against children).

It also applies to those who allegedly commit a serious indicatable offence whilst on bail or parole, or subject to an arrest warrant.

It provides that a bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause as to why their detention is not justified.

The 'show cause' requirement does not require there to be something 'special or exceptional' and it may be shown through a culmination of different factors. If the accused person shows cause, the application will then proceed to the 'unacceptable risk test'.

This involves the accused person demonstrating that there is no unacceptable risk that cannot be mitigated by the imposition of reasonable bail conditions. Whether there is an unacceptable risk involves an assessment of bail concerns.

Bail concerns refers to concerns that an accused person may fail to appear at any proceedings for the offence, commit a serious offence, endanger the safety of victims, individuals, or the community, or interfere with witnesses or evidence.

The Bill seeks to introduce further factors for a bail authority to consider when assessing whether there are any bail concerns, namely whether the accused has engaged in behaviour that constitutes domestic abuse, and the views of any victim or family member of a victim (if available to the bail authority), in the case of a domestic violence offence against an intimate partner.

It also addresses electronic monitoring, providing that where an accused person is subject to the show cause condition due to being charged with a serious domestic violence offence, and is granted bail, a bail condition that they be subject to electronic monitoring must be imposed, unless the bail authority is satisfied sufficient reasons exist, in the interests of justice, to justify not imposing the condition.

Electronic monitoring refers to ankle bracelet monitoring. Notably, as it currently stands in New South Wales, there is no electronic monitoring for those that are out on bail provided by the state.

Such devices have been used for domestic violence offenders on parole in a limited capacity since 2016. NSW Premier Chris Minns has noted that he is unable to give a specific timeframe on the rollout of the bracelets, as the regime will require the establishment of new infrastructure and the purchase of further devices.

The bill also provides for the 'stay' of a release decision if detention is sought for a serious domestic violence offence or coercive control. This essentially provides prosecutors with time to challenge the release of someone accused of such offences, where it has been initially granted.

A police officer or prosecutor must inform the court or authorised justice that a detention application is to be made and provide them with a copy of the written approval to make a detention application to the Supreme Court if bail is granted or dispensed with.

The stay of the decision will have effect until the Supreme Court affirms, varies, or substitutes the decision, or refuses to hear the detention application. The police officer or other person acting on behalf of the Crown may also file a notice with the Supreme Court stating that it does not intend to proceed with the detention application.

If neither of the above actions are taken, the stay of the decision will cease to have effect by 4pm on the day that is 3 business days after the day on which the initial grant of bail was made.

A detention application made to the Supreme Court when a decision is stayed is to be dealt with as expeditiously as possible, as per section 40 of the Bail Act.

This provision currently only applies to the offence of murder, any other offence punishable by imprisonment for life, as well as those involving sexual intercourse, or an attempt to have sexual intercourse, with a person under the age of 16 years.

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