Bail,+remand+&+detention+and+interrogation,+rights+of+suspects

**BAIL AND REMAND - THE DETENTION OF SUSPECTS** It is important to note at this stage of the process a person is NOT yet guilty of a criminal offence. Thus the law must balance the rights of the accused with the protection of the community.


 * Bail ** is the term for the conditional release of a person until their case is determined by the courts.
 * It is a promise to return to court for a trial
 * It may or may not involve money
 * It is conditional release determined by a court
 * The nerrrrrr




 * Remand ** is a special type of detention that allows for a person accused of a serious crime to be held for the period between being charged and facing trial.



[|Factors]considered by a magistrate when determining the issue of bail


 * Seriousness of a crime: ** for less serious offences, bail should be granted. Such crimes can be found within the

Summary Offenses Act 1988 (NSW) and are generally crimes which are not punishable by a prison sentence and there is a **//presumption in favour of bail.//**

In the case of more serious offences, such as homicide, there is a //**presumption against bail**// unless there are exceptional circumstances.

**Likelihood of accused to comply with the terms/conditions of bail:** the magistrate must consider whether or not the accused is likely to meet with the terms and conditions of bail. Such conditions include not leaving the country, turning up to court on the specified date of their trial, etc. If the accused has a history of breaching these terms and conditions, bail is unlikely to be granted.

What happens if a suspect is denied bail:


 * If accused should remain in custody in custody until trial, the accused will be held on remand in police custody or at a remand centre.
 * Remand is usually sought against people who have committed particularly violent crimes, dangerous criminals, repeat offenders or those thought to be a flight risk.
 * Accused will remain in detention until the trial date is set, throughout the trial and until they are sentenced
 * If they are convicted, the time spent in remand is usually taken off the sentence.

Detained people and the right to a lawyer

Despite the high believe that the Australian legal system allows detainees the right to a lawyer, this is not true.

**Dietrich v. The Queen (1992)** – Dietrich was charged with drug offences, and denied legal aid as he did not pass the legal aid criteria (he wanted to plea guilty when it was fairly obvious he was guilty). Dietrich represented himself, refusing to plea guilty. Dietrich appealed to the high court saying he did not get a fair trial as he had no legal representation. The judge agreed that it was not a fair trail but noted there was no automatic right to legal representation in Australia.

Legal restrictions governing the detention of suspects

The //Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)// sets out the lawful conditions under which a suspect can be detained for questioning and for the purpose of further investigation.

Police can only detain a suspect for a period of four hours, by which time that person must be either charged or unconditionally released. They may apply to a magistrate for a warrant to extend the the investigation period for up to a further eight hours.

Some things aren't included in the four hours:

- transport from the point of arrest to the station

- waiting for the relevant law enforcement officers to arrive to conduct the interviews

- waiting for a legal practitioner, family member, guardian of a dependent person or an interpreter to arrive to the police station

- time required by the suspect to talk to a friend, relative or lawyer and the time it takes for that person to arrive to the police station

- medical treatment for the person in custody

- refreshment period such as eating, drinking, showering, or going to the toilet

- recovering from the effects of drugs or alcohol

- charging proceedures

- taking part in an identity parade (lineup)

Effectiveness
 * Amendment to the Bail Act in 2007 prevents people who have been charged from making more than one bail application
 * Effect is that more people are held on remand
 * This has had a particularly harsh effect on juvenile offenders and Indigenous Australians


 * Restrictions have been added to the Bail Act against granting bail for certain offences such as drug trafficking or serious domestic violence
 * Known as the 'presumption against bail'
 * Controversial
 * Effect of denying bail can be severe on the accused person and may result in extensive period of custody before the verdict is reached
 * Risk that the accused may in fact be innocent and eventually found not guilty