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Bail Act 2018


REPUBLIC OF NAURU

BAIL ACT 2018

______________________________

No. 18 of 2018
______________________________


An Act to provide a legislative framework as to whether a person who is accused of an offence is required to appear before a court, be detained or released and for related purposes

Certified: 10th May 2018

Table of Contents


PART 1 – PRELIMINARY
1 Short Title
2 Commencement
3 Definitions


PART 2 – GENERAL PROVISIONS IN RELATION TO BAIL
4 Entitlement to bail
5 Rights following the grant of bail
6 Right to release for certain offences
7 Dispensing with bail
8 Effect of dispensing with bail


PART 3 – ADMINISTRATION OF BAIL BY POLICE
9 Authority for Police to grant bail
10 Bail determination to be made after charge is laid
11 Procedure to be followed by police officers when determining bail
12 Procedure to be followed by police officers if bail not granted


PART 4 – POWER OF THE COURT TO GRANT BAIL
13 Power of Resident Magistrate, Judges and Justices of Appeal to grant bail
14 Bail determinations by the courts
15 General provisions as to court bail
16 Evidence of residence


PART 5 – BAIL DETERMINATION
17 General provisions for bail determination
18 Refusal of bail
19 Reasons for refusing bail
20 Reasons to be recorded


PART 6 – BAIL CONDITIONS
21 Bail undertakings
22 Conditions of bail
23 Restrictions on imposing bail conditions
24 Provisions respecting money or security
25 Procedure on surrender to custody


PART 7 – OFFENCES AND PENALTIES
26 Accused person absconding or breaching conditions of bail
27 Penalty for absconding, giving false residential address or breaching bail conditions
28 Forfeiture of security
29 Discharge of security


PART 8 – CONTINUATION OR GRANT OF BAIL ON ADJOURNMENT ETC.
30 Continuation of bail


PART 9 – REVIEW OF AND APPEALS ON BAIL DECISIONS
31 Power of review
32 Appeals on bail decisions


PART 10 – MISCELLANEOUS
33 Regulations
34 Repeal and savings


Enacted by the Parliament of Nauru as follows:

PART 1 – PRELIMINARY

  1. Short Title

This Act may be cited as the Bail Act 2018.

  1. Commencement

This Act commences on 15 May 2018.

  1. Definitions

accused personor ‘person accused of an offence means a person who has been arrested for, or charged with, an offence and –


(a) who is awaiting trial before the District Court;

(b) who has been committed for trial before the Supreme Court;

(c) whose trial has been adjourned;

(d) who has been convicted and –

(e) who is under arrest for a breach of bail or a breach of a bail condition; or

(f) who has applied for a writ of habeas corpus;

appeal’ includes an application for leave to appeal and a proceeding by way of appeal;

authorised officermeans the Registrar of the Courts, Deputy Registrar of the Courts, the clerk of the District Court, or any officers of the court so designated;

bail for a person accused of an offence means authorisation for the person to be at liberty instead of in custody, on condition that the person appears for trial, for sentence, for hearing for an application or appeal relating to the offence, or for an adjournment of any of those matters, and includes bail granted by a police officer;

bail condition’ means a condition imposed under section 22;

bail undertakingmeans an undertaking given under section 21;

cognisable offence’, in relation to bail, means cognisable offence as defined under section 10 of the Criminal Procedure Act 1972;

close relativeof a person means a parent, spouse, de facto partner, sibling, child or grandparent of the person, or any member of the person’s family, clan, or kin identified by the police officer or the court as a close relative;

continued’, in relation to bail, means continued under section 31;

conviction includes:


(a) a finding of guilt;

(b) a finding that a person is not guilty by reason of insanity;

(c) a conviction of an offence for which an order is made placing the offender on probation or discharging him or her absolutely or conditionally following a finding that the facts of the charge were proved;

court includes the District Court, Supreme Court or Court of Appeal and includes a Resident Magistrate, Judge or Justice of Appeal;

grant of bailincludes continuation of bail under section 31;

minor’ means a person under the age of 18 years;

offenceincludes an alleged offence;

police officermeans a police officer of the rank of sergeant or above, and any reference to the police officer is a reference to any police officer of the rank of sergeant or above;

review’ means a review of a bail decision under section 31;

serious offencemeans an offence for which the maximum penalty includes imprisonment for 3 years or more;


specially affected personmeans:


(a) a person against whom an alleged offence has been committed;
(b) a close relative of any such person; or
(c) any other person who in the opinion of the police officer or the court warrants special consideration because of the circumstances of the case;

surety means a person, other than the accused person or a person under 18 years, whom a police officer or court determines to be acceptable to provide confirmation of the accused person’s bail undertaking, or security that such undertaking will be complied with; and

surrender into custodyin relation to a person released on bail, means the person surrendering into the custody of the court or of a police officer as the case may be, at the time and place appointed for doing so.

(2) In this Act, a reference to ‘the police officer’ or ‘the court’ means the police officer who or the court which has granted bail or is considering granting bail to a person under this Act.

(3) In this Act, a reference to a form is a reference to the forms prescribed by regulations.

PART 2 – GENERAL PROVISIONS IN RELATION TO BAIL

  1. Entitlement to bail
  2. Rights following the grant of bail
  3. Right to release for certain offences
  4. Dispensing with bail
  5. Effect of dispensing with bail

PART 3 – ADMINISTRATION OF BAIL BY POLICE

  1. Authority for Police to grant bail
  2. Bail determination to be made after charge is laid

If a person has been charged by a police officer with an offence and is in custody, the police officer shall:


(a) give the person information in writing in a language or any other means the person understands respecting the person's entitlement to bail;

(b) if authorised to grant bail under section 9, not later than 24 hours after the person has been charged, grant bail to the person or bring the person or cause the person to be brought before a court; and

(c) if not authorised to grant bail under section 9, bring the person before a court as soon as practicable and in any event within 24 hours.
  1. Procedure to be followed by police officers when determining bail

A police officer who makes a determination as to bail shall:


(a) inform the accused person, or cause the person to be informed, in a language or by any other means the person understands, that the person may consult (including in private) with a lawyer or pleader of his or her choice in relation to bail; and

(b) if the person so requests, provide the accused person, or cause the person to be provided, with reasonable facilities to enable the person to make such a consultation.
  1. Procedure to be followed by police officers if bail not granted

If an accused person is refused bail by a police officer, the police officer who refused bail or another police officer of equal or superior rank shall, as soon as practicable, and in any event within 24 hours, bring the person before a court for a decision on bail by the court.

PART 4 – POWER OF THE COURT TO GRANT BAIL

  1. Power of Resident Magistrate, Judges and Justices of Appeal to grant bail

A Resident Magistrate, a Judge, or a Justice of Appeal may at any time:


(a) grant bail to a person accused of an offence and brought or appearing before the Resident Magistrate, Judge, or Justice of Appeal; or

(b) grant bail to a person who is an appellant under the provisions of the Supreme Court Act 2018, the Nauru Court of Appeal Act 2018 or any other written law.
  1. Bail determinations by the courts
(4) If a person charged for an offence has been in custody for over 2 years or more and the trial of the person has not begun, the court shall release the person on bail subject to bail conditions the court thinks fit to impose.

(5) Subsection (4) does not apply where the trial of the person has begun and the court has refused to grant bail or where the person is serving a sentence for another offence.

(6) For the purpose of subsection (4), the period of 2 years does not include any period of delay caused by the fault of the person.

(7) For the purposes of subsection (4), ‘trial’ means the trial proper of the person in respect of the offence which the person has been charged with and does not include committal proceedings or the determination of any preliminary or interlocutory application.
  1. General provisions as to court bail
  2. Evidence of residence

PART 5 – BAIL DETERMINATION

  1. General provisions for bail determination
  2. Refusal of bail
  3. Reasons for refusing bail
(2) In forming the opinion required by subsection (1) a police officer or court shall have regard to all the relevant circumstances and in particular:
  1. Reasons to be recorded

PART 6 – BAIL CONDITIONS

  1. Bail undertakings
  2. Conditions of bail
(4) If security by an accused person or surety under this section is considered necessary as a condition of bail, the police officer or the court, as the case may be, shall ascertain, under oath if necessary, the ability of the accused person or the surety to provide the security.

(5) If security under this section is required, it shall be set with reference to the capacity of the accused person or acceptable person to meet the obligation.

(6) A requirement for security as referred to in this section shall not be imposed if it amounts to an unreasonable impediment to the granting of bail.
  1. Restrictions on imposing bail conditions
(2) Conditions shall only be imposed:

and may only be imposed if required by the circumstances of the accused person.

  1. Provisions respecting money or security
  2. Procedure on surrender to custody

PART 7 – OFFENCES AND PENALTIES

  1. Accused person absconding or breaching conditions of bail

the court may issue a warrant for the arrest of the accused person.


(2) A person who has been released on bail may be arrested without warrant-

(3) A person arrested pursuant to subsection (2) shall be brought as soon as practicable, and in any event within 24 hours after the arrest, before a Justice of Appeal, a Judge or a Resident Magistrate, as the case may be, who may remand the person in custody or grant him or her bail subject to conditions, which may be the same as or different from those originally imposed.
  1. Penalty for absconding, giving false residential address or breaching bail conditions
  2. Forfeiture of security
  3. Discharge of security

to discharge the person from his or her liability as surety.


(2) On an application under subsection (1) the court shall, if the accused person is not then in custody or before the court:

(3) On the appearance of the accused person before the court, the court shall, unless satisfied that it would be unjust to do so, direct that the surety be discharged from his or her liability and the surety is thereby discharged.

(4) If the court discharges the surety from his or her liability, it may impose further conditions on the grant of bail, and may commit the accused person to prison until those conditions are complied with.

PART 8 – CONTINUATION OR GRANT OF BAIL ON ADJOURNMENT ETC.

  1. Continuation of bail

PART 9 – REVIEW OF AND APPEALS ON BAIL DECISIONS

  1. Power of review
  2. Appeals on bail decisions

PART 10 – MISCELLANEOUS

  1. Regulations
  2. Repeal and savings


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