New South Wales Repealed Acts New South Wales Repealed ActsThis legislation has been repealed.
Omit the definition of "court" from section 4 (1). Insert instead:
"court" means:(a) the Court of Criminal Appeal, the Supreme Court, the Land and Environment Court, the Industrial Relations Commission, the District Court or a Local Court, or(b) any other court which, or person who, exercises criminal jurisdiction.
Omit
"entering into a recognizance to prosecute proceedings in respect of a stated
case" from section 6 (f).
Insert instead "applying to a Justice or Justices for the statement of a case
under section 101 of the Justices Act 1902 ".
Omit section 34 (1). Insert instead:
(1) A person is not to be released on bail unless the person undertakes, in writing:(a) to appear before such court, on such day and at such time and place as are from time to time specified in a notice given or sent to the person as prescribed by the regulations, and(b) to notify that court from time to time of any change in the person's residential address.
Insert after section 36 (6):
(7) The authorised officer or court to whom the bail undertaking is given must take all reasonable steps to ensure that any person who enters into an agreement in compliance with a condition referred to in subsection (2) is made aware of:(a) the obligations incurred by the person under that agreement, and(b) in particular, the consequences that may follow if the accused person by whom the bail undertaking is given fails to comply with that undertaking.
Insert after section 42:
42A Fraudulent disposal of assets(1) A person:(a) who enters into an agreement referred to in section 36 (2) (e) or (f) to forfeit a specified amount of money if an accused person fails to comply with his or her bail undertaking, and(b) who, under that agreement, deposits security in the form of property,is guilty of an offence if he or she disposes of the property, or causes or allows the property to be disposed of, for the purpose of preventing the security from being realised.Maximum penalty: imprisonment for 2 years.(2) Proceedings for an offence against this section are to be dealt with by a Local Court constituted by a Magistrate sitting alone.
42B Revocation of bail if bail security no longer intact(1) A court may at any time revoke a person's bail if it appears to the court that any security deposited for the purposes of a condition imposed on the grant of bail (the "current bail security") is no longer intact:(a) having ceased to exist, or(b) having diminished in value, or(c) being no longer available as security for any reason (for example, because it is no longer in the ownership or control of the person by whom it was deposited).(2) The court must not revoke an accused person's bail under this section unless:(a) it has caused written notice of the proposed revocation to be served on the accused person, and(b) it has given the accused person at least 28 days from the date on which the notice was served:(i) to demonstrate to the court that the current bail security is still intact, or(ii) to arrange for the deposit of replacement or supplementary security, whether by the person by whom the current bail security was deposited or by some other person.(3) The written notice:(a) must contain such information as the regulations require, and(b) must be sent by post to the person at the person's address specified in the relevant bail undertaking or, if the person has subsequently notified the court of a change of address, to the person's address most recently notified, and(c) is presumed to have been served on the person at the end of the seventh day after it was posted, unless the person establishes that it was not delivered to that address within that time.
Omit the section.
Insert after Part 7:
53 Definitions In this Part:
"appropriate State authority" means such person or body representing the Crown as is declared by the regulations to be the appropriate State authority for the purposes of this Part.
"bail agreement" means an agreement entered into under section 36 in connection with an accused person's bail undertaking, whether entered into by the accused person or by any other person.
"bail guarantor" means any person who enters into a bail agreement in connection with an accused person's bail undertaking, other than the accused person.
"bail money" means money agreed to be forfeited under a bail agreement.
"bail security" means security given under a bail agreement to secure payment of bail money.
"forfeiture notice" means a notice referred to in section 53B.
"forfeiture order" means an order referred to in section 53A.
"person affected", in relation to a forfeiture order, means the accused person or bail guarantor whose bail money is forfeited to the Crown by operation of the order.
"registrar", in relation to a Local Court, means the clerk of the Local Court.
"statutory review period", in relation to a forfeiture order, means the period of 28 days during which a person affected by the order may file an objection to the confirmation of the order, as referred to in section 53C.
53A Court may make forfeiture order if accused fails to appear(1) If satisfied that an accused person has failed to comply with his or her bail undertaking to appear before it, the court:(a) with which the accused person entered into the undertaking, or(b) before which the accused person is under a duty to appear under the undertaking,may make a forfeiture order in relation to any bail money agreed to be forfeited under an associated bail agreement.(2) A forfeiture order may not be made if more than 3 years have elapsed since the accused person allegedly failed to appear before the court in accordance with the relevant bail undertaking.
53B Persons affected to be notified that forfeiture order has been made(1) As soon as practicable after a forfeiture order is made, the registrar of the court by which the order was made must cause written notice of the making of the order to be served on each person affected by the order.(2) The notice:(a) must contain such information as the regulations require, and(b) must be sent by post to the person at the person's address specified in the relevant bail undertaking or, if the person has subsequently notified the court of a change of address, to the person's address most recently notified, and(c) is presumed to have been served on the person at the end of the seventh day after it was posted, unless the person establishes that it was not delivered to that address within that time.(3) This section ceases to apply if, before the notice is sent, an oral objection to the confirmation of the forfeiture order is made under section 53E.
53C Formal objection to confirmation of forfeiture order(1) Any person affected by a forfeiture order may file in the office of the court by which the order was made an objection to the confirmation of the order.(2) Such an objection may not be made more than 28 days after service of the forfeiture notice issued in relation to the forfeiture order.(3) An objection must be made in accordance with rules of court and must include the grounds on which the applicant intends to rely.(4) The court must ensure that notice of such an objection is given to the appropriate State authority in accordance with the regulations.
53D Hearing of formal objection to confirmation of forfeiture order(1) The court to which an objection to the confirmation of a forfeiture order is duly made must conduct a hearing to determine whether or not the order should be confirmed.(2) After conducting a hearing, the court must confirm the forfeiture order unless it is satisfied that the accused person did not fail to comply with the relevant bail undertaking, in which case it must set the forfeiture order aside.(3) However, if it is satisfied that in the circumstances of the case it would be unjust for the forfeiture order to be confirmed in full in respect of a particular person affected by the order, the court:(a) may vary the order so as to reduce the amount of bail money to be forfeited by that person, and(b) in that event, must confirm the order as so varied.(4) The court may be satisfied that it would be unjust for a forfeiture order to be confirmed in full in respect of a particular bail guarantor if it is satisfied that the guarantor took all reasonable steps to ensure that the accused person complied with the relevant bail undertaking.
53E Informal objection to forfeiture order(1) If, after a forfeiture order is made but before a forfeiture notice is served, a person affected by the order appears before the court by which the order was made, that person may make an oral objection to the court against the confirmation of the order.(2) The court must ensure that notice of the objection is given to the appropriate State authority in accordance with the regulations.(3) The court may deal with the objection as if it had been an objection filed in response to a forfeiture notice.
53F When forfeiture order takes effect(1) A forfeiture order takes effect:(a) at the expiry of the statutory review period, or(b) if an objection to the confirmation of the order is filed in the court before the expiry of the statutory review period, at the time the order is confirmed under section 53D.(2) A forfeiture order does not take effect if it is set aside under section 53D.(3) No action may be taken to enforce a forfeiture order until the date the order takes effect.
53G Effect of forfeiture order(1) As soon as a forfeiture order takes effect, the bail money to which it relates:(a) is forfeited to the Crown, in the case of bail money that is deposited with an authorised officer or court, or(b) becomes payable to the Crown, in the case of bail money that is agreed to be paid to an authorised officer or court,and (in the case of unpaid bail money) any bail security becomes enforceable in accordance with its terms.(2) Despite subsection (1), no action is to be taken to enforce any bail security the subject of a forfeiture order to which section 53K applies until 12 months after the date on which the order was made.
53H Persons affected to be notified that forfeiture order has taken effect(1) As soon as practicable after a forfeiture order takes effect, the registrar of the court by which the order was made must cause written notice that the order has taken effect to be served on each person affected by the order.(2) The notice:(a) must contain such information as the regulations require, and(b) must be sent by post to the person at the person's address specified in the relevant bail undertaking or, if the person has subsequently notified the court of a change of address, to the person's address most recently notified, and(c) is presumed to have been served on the person at the end of the seventh day after it was posted, unless the person establishes that it was not delivered to that address within that time.
53I Reference of forfeiture order for enforcement(1) If any bail money to which a forfeiture order relates remains unpaid after the order takes effect, the registrar of the court by which the order was made is to refer the following documents to the State Debt Recovery Office:(a) a copy of the forfeiture order,(b) a copy of the bail undertaking and of the relevant bail agreement,(c) a copy of all documents evidencing any relevant bail security,(d) a certificate, issued by the registrar of the court, as to the amount of bail money that remains unpaid as at the date on which the order is referred.(2) A certificate referred to in subsection (1) (d) is admissible in any legal proceedings and is evidence of the matters stated in the certificate.
53J Payment of forfeited bail money(1) Bail money that becomes payable to the Crown as a consequence of a forfeiture order taking effect must be paid:(a) if paid before a copy of the order is referred to the State Debt Recovery Office, to the registrar of the court by which the order was made, or(b) if paid after a copy of the order is referred to the State Debt Recovery Office, to the State Debt Recovery Office.(2) A bail guarantor by whom an amount of bail money is payable is entitled to the return of any bail security lodged in relation to that amount if he or she pays that amount in money to the court by which the forfeiture order was made or to the State Debt Recovery Office, as the case requires.
53K Application to set aside forfeiture order(1) This section applies to a forfeiture order that has taken effect at the expiry of the statutory review period, no objection to the confirmation of the order having been made within that period.(2) Any person affected by a forfeiture order may file in the office of the court an application to have the order set aside.(3) Such an application may not be made more than 12 months after the date on which the forfeiture order was made.(4) An application must be made in accordance with rules of court and must include the grounds on which the applicant intends to rely.(5) The registrar of the court must ensure that copies of such an application are given to:(a) the appropriate State authority, and(b) the State Debt Recovery Office,and action to enforce the order may not be commenced or continued until proceedings on the application are finally determined.
53L Hearing of application to set aside forfeiture order(1) If the court to which an application to have a forfeiture order set aside is duly made is satisfied:(a) that notice of the making of the order was not served on the applicant, and(b) that at no time before the expiry of the statutory review period was the applicant aware that the order had been made,the court must conduct a hearing to determine whether or not the order should be set aside.(2) After conducting a hearing, the court must dismiss the application unless it is satisfied that the accused person did not fail to comply with the relevant bail undertaking, in which case it must set the forfeiture order aside.(3) However, if it is satisfied that in the circumstances of the case it was unjust for the forfeiture order to have been confirmed in full in respect of a particular person affected by the order, the court may vary the order so as to reduce the amount of bail money that should have been forfeited by that person.(4) The court may be satisfied that it was unjust for a forfeiture order to have been confirmed in full in respect of a particular bail guarantor if it is satisfied that the guarantor took all reasonable steps to ensure that the accused person complied with the relevant bail undertaking.(5) Notice of the court's determination of the application is to be given to the State Debt Recovery Office.
53M Effect of setting aside forfeiture order(1) If a court sets aside a forfeiture order, each person affected by the order is entitled to the return of:(a) any bail money or bail security that has been deposited by that person, or seized from that person, in relation to the bail undertaking to which the order relates, and(b) the proceeds of sale of any bail security so deposited or seized.(2) If a court varies a forfeiture order so as to reduce the amount of money forfeited by a particular person affected by the order, that person is entitled to the return of:(a) any bail money or bail security that has been deposited by that person, or seized from that person, in relation to the bail undertaking to which the order relates, and(b) the proceeds of sale of any bail security so deposited or seized,to the extent to which the amount of any such bail money, bail security or proceeds of sale exceeds the reduced amount of money forfeited.(3) A court that sets aside a forfeiture order may make such orders as are necessary to effect the return of any such bail money, bail security or proceeds of sale.(4) The Consolidated Fund is appropriated to the extent necessary to enable money that has been paid into that Fund to be returned in accordance with this section.
53N Appeals(1) An appeal against a decision by a Local Court under section 53D or 53L with respect to a forfeiture order may be made to the District Court under section 122 of the Justices Act 1902 in the same way as an appeal may be made to the District Court against an order referred to in that section, and Division 4 of Part 5 of that Act applies accordingly.(2) The clerk of the Local Court must ensure that notice of the appeal is given to:(a) the appropriate State authority, and(b) the State Debt Recovery Office,and action to enforce the order may not be commenced or continued until proceedings on the appeal are finally determined.
53O Court of Criminal Appeal may authorise other courts to take action In the case of an accused person who is under a duty to appear before the Court of Criminal Appeal in connection with an appeal:(a) the Court of Criminal Appeal may instead authorise the court from which the appeal arose to take any action under this Part that the Court of Criminal Appeal is authorised to take, and(b) in that event, the court from which the appeal arose may take such action.
53P Crown a party to forfeiture proceedings The Crown is entitled to appear and be heard at, and is taken to be a party to, all proceedings under this Part.
Omit section 53N (1) (as inserted by item [7]).
Insert instead:
(1) An appeal against a decision by a Local Court under section 53D or 53L with respect to a forfeiture order may be made to the District Court under section 120 of the Justices Act 1902 in the same way as an appeal may be made to the District Court against an order referred to in that section, and Part 5A of that Act applies accordingly.
Insert "and" after "undertaking," in section 54 (1) (a).
Omit "conditions, and". Insert instead "conditions.".
Omit the paragraph.
Insert at the end of the Schedule (with appropriate Part and clause numbers):
Application of sections 42A and 42B and Part 7A to existing bail agreements The provisions of section 42A, section 42B and Part 7A apply to and in respect of any bail agreement entered into before the commencement of those provisions in the same way as they apply to and in respect of any bail agreement entered into after that commencement.
Regulations(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998 .(2) Such a provision may, if the regulations so provide, take effect from the date of assent to that Act or a later day.(3) To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.