How does Section 22B of the Bail Act NSW affect you?

On 23 June 2022, parliament passed an Amendment Bill on the Bail Act 2013. It was assented to on 27 June 2022.

What is section 22B of the Bail Act in NSW?

Section 22B of the Bail Act

22B Limitation regarding bail during period following conviction and before sentencing for certain offences

1. During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court:

1. 1. On a release application made by an accused person must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or
   2. On a detention application made in relation to the accused person must refuse bail, unless it is established that special or exceptional circumstances exist that justify.
2. If the offence is a show cause offence, the requirement that the accused person establish that special circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person’s detention is not justified.

In broad terms, this legislation now means that the following facts may apply:

1. That the accused person has either:

1. Been found guilty, or
2. Has entered a plea of guilty;

The implications of this new amendment could go two ways, the amendment is so specific that it does not make changes to the way justice is prevailed in our justice system or it overarches the rules of the system and overall end up with a mini trial at a bail hearing rather then playing it out through the correct criminal trial process.

Pursuant to Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173 the NSW Court of Appeal denied the use of Section 22B on Day, it was found that although Day was convicted of 34 of 47 charges of embezzlement on 5 July 2022. He was due to be sentence on 16 September 2022, the Judge found that although Section 22B was satisfied, he did not pose an unacceptable risk to the community pursuant to Section 17 and Section 18 of the Bail Act 2013. Therefore, the appeal was not granted.

Considering the specifics of Section 22B applied seem to be intimidating, it does not provide the whole scope for bail, therefore, the discretion of the magistrates/judges to consider the entire scope are at large and seem to take priority.