Risk Based Bail System in Nsw

Topics: Common law, Law, Bail Pages: 15 (5042 words) Published: July 28, 2013
Q. ‘The bail legislation of Bangladesh is more focused on justification rather than risk based approach’-discuss this statement and give a comparative description in this regard between Bangladesh and New South Wales. I.INTRODUCTION

In the discourse of criminal justice system bail is one of the arenas which not only generates a huge adherence but also a significant assumption. There are lot considerations take into place when the question of enlarging bail is comes into existence. The court or the police as a matter of fact are regulated by some principles, and it is obvious that not all persons who are engaged with an offence will be entitled to get bail. Bail is broadly used to refer to the release of a person charged with an offence, on his providing a security that will ensure his presence before the court or any other authority whenever required. The governing bail legislation in Bangladesh is The Code of Criminal Procedure (Cr PC) 1898 which is age old one and legacy of British colony. The entire bail system has been developed in the Bangladesh on the basis of judicial pronouncement of the apex court. According to Article 111 of the Bangladesh Constitution the decision given by the apex court of the country is binding upon the courts subordinate to it. On the other hand the bail legislation in Australia more specifically in the New South Wales is exclusively governed by the relevant legislation. The bail Act 1978 (NSW) is the governing legislation in terms of bail. Recently the New South Wales parliament passed new Bail Act for making the legislation easier on the basis of Law Reform Commission’s report with subtle changes. However the aim of this essay is not to discuss the discourse of the bail legislation in Bangladesh or New south wales of Australia. Rather the aim is to assess the importance of doctrine of justification for granting bail in Bangladesh and the presumption why it has been manifested in Bangladesh and to discuss why the New South Wales Government denied to accept the doctrine of justification in granting bail in the new enacted legislation. Further the essay will focus briefly on comparative analysis of Bangladesh and New South Wales in terms of accommodating the respective doctrine.

II.BAIL IN BANGLADESH
Being a common law country, in Bangladesh criminal proceeding is based on a prima facie assumption of guilt and on the other hand there is a presumption of innocence in favor of the accused. The appearance of the accused in the court on the date fixed generates the assumption of guilt against the accused and the same time enlarging bail serves the purpose of presumption of innocence. Generally bail serves manifold purposes such as to appear before court, prefer an appeal and for giving evidences. Considering the matter of bail in the legislation all offences are divided into two sections one is bailable offences and other is non bailable offences. But there are no definitions in the Code of Criminal Procedure in Bangladesh about these two. However the second schedule of the CrPC broadly categorizes which offences are bailable and which are not. When any person accused of a bailable offence is arrested or detained or come before the court after getting notice he must be released on bail, if a request for bail is made. In such a case, bail is a matter of right. The bail authority can release the accused even without sureties with accused own bond. In any case if the police officer does not give bail, he shall produce the accused to the nearest magistrate within 24 hours and magistrate is duty bound to enlarge the alleged accused on bail. Non bailable offences means the offences where the schedule of the Criminal Procedure Code stated that is not to be granted. Judge of the criminal courts often face difficulties in dealing with bail petitions. Such difficulties arise mainly in dealing with bail of persons who are accused of non bailalble offence.

III.MAJOR LEGISLATION REGARDING BAIL...

Bibliography: Devine, F., ‘Bail In Australia’ (1989), Australian Institute of Criminology, Canberra, 6-7.
Freeman, M and Van Ert, G, International Human Rights Law (Irwin Law, Toronto 2004)24.
Glazebrook, J Susan, ‘Risky Business: Predicting Recidivism’ (2010)17 Psychiatry, Psychology and Law 89.
Halim , Abdul, Text on Criminal Procedure Code (CCB Foundation, Dhaka, 2008).
Haque, Ridwanul ‘Taking Justice Seriously: Judicial Public Interest and Constitutional Activism in Bangladesh’, (2006)15:4 Contemporary South Asia, 399.
Haq, Justice Hamidul, Some loopholes and Deficiencies in the Existing Laws Relating to Trial of Criminal Cases (2008) 2 <http://www.hrbp.org.bd/images/pdf>.
Haque, Justice Hamidul, Trial of Civil Suits and Criminal Cases (Dhaka, 2010)416.
Hugue, JAS, Inordinate Delay in Trial by Criminal Courts - A Problem of Serious Magnitude in Bangladesh (From UNAFEI Report for 1980 and Resource Material Series No
Huq, Zahirul Law and Practice of Criminal Procedure, with Up-to-date amendments (Bangladesh Law Book Company, Dhaka, 9th ed, 2005)868.
Marshall, P, ‘An Analysis of Preventive Detention for Serious Offenders’ (2007) 13 Auckland U L Rev 127.

Rustogi, Ankita ‘The Right to Bail under Indian Criminal Procedure Law’ (2009) Social Science Research Network 9
Steel, A, ‘Politicians’ justifications for bail law amendment across Australia’ (Proceedings of the Australian and New Zealand Critical Criminology Conference, Melbourne, July 2009).
Terrill , R.J., World Criminal Justice Systems: A Survey, (Anderson Publishing. 2nd Ed. Cincinnati, Oh)
The Law commission of Bangladesh, Complete Report Problem Relating to Bail (2002) 4

New South wales Law Reform Commission, Bail, Report No 133 (2012)
Nurul Islam Monzoor Vs The State (2001) 6 MLR194.
Shaikh Shahidul Islam Vs State (1992) 44 Dhaka LR(AD) 192.
State Vs Zakaria Pintu and others (2001)18 (AD) BLT 491.
[ 5 ]. J Susan Glazebrook, ‘Risky Business: Predicting Recidivism’ (2010)17 Psychiatry, Psychology and Law 89.
[ 6 ]. Zahirul Huq, Law and Practice of Criminal Procedure, with Up-to-date amendments (Bangladesh Law Book Company, Dhaka, 9th ed, 2005)868.
[ 8 ]. Justice Hamidul Haq, Trial of Civil Suits and Criminal Cases (Dhaka, 2010)416.
[ 14 ]. Nurul Islam Monzoor Vs The State (2001) 6 MLR194.
[ 16 ]. Ankita Rustogi, ‘The Right to Bail under Indian Criminal Procedure Law’ (2009) Social Science Research Network 9. .
[ 19 ]. Shaikh Shahidul Islam Vs State (1992) 44 Dhaka LR(AD) 192.
[ 20 ]. State Vs Zakaria Pintu and others (2001)18 (AD) BLT 491.
[ 21 ]. The Law commission of Bangladesh, Complete Report Problem Relating to Bail (2002) 4. .
[ 22 ]. Abdul Halim , Text on Criminal Procedure Code (CCB Foundation, Dhaka, 2008).
[ 26 ]. Justice Hamidul Haq, Some loopholes and Deficiencies in the Existing Laws Relating to Trial of Criminal Cases (2008) 2 .
[ 28 ]. New South wales Law Reform Commission, Bail, Report No 133 (2012).
[ 29 ]. A Steel, ‘Politicians’ justifications for bail law amendment across Australia’ (Proceedings of the Australian and New Zealand Critical Criminology Conference, Melbourne, July 2009).
[ 35 ]. P Marshall, ‘An Analysis of Preventive Detention for Serious Offenders’ (2007) 13 Auckland U L Rev 127.
[ 36 ]. M Freeman and G Van Ert, International Human Rights Law (Irwin Law, Toronto 2004)24.
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