Magistrate Robyn Richardson drew on an important tenet of the Bail Act when releasing Maitland bus driver Brett Andrew Button from custody in Cessnock Local Court on Tuesday.
The role of the state's bail laws, which have a history of being hijacked by politicians, is not to assess guilt nor punish the accused. Trials and sentencing hearings are the domain of these aspects of the law.
The presumption of innocence is the foundation of the criminal justice system, but, as University of Wollongong academic Julia Quilter wrote in The Conversation soon after the current Bail Act came into force 10 years ago, the public, media and politicians often "conflate the role of bail with that of guilt and a desire to condemn and punish".
"The principle ... is bail is not to be denied as a punishment. Determination of sentence is an entirely different issue," Ms Richardson said on Tuesday.
For the purposes of the act, a bail authority must take into account whether the accused poses an unacceptable risk of failing to appear at future proceedings; committing a serious offence; endangering the safety of victims, individuals or the community; or interfering with witnesses or evidence.
The onus is on the court to deny bail for certain serious offences unless the accused shows cause why they should be released, but the charges Mr Button faces are not among these "show cause" offences.
When considering whether an accused person poses an unacceptable bail risk, the court takes into account their criminal history and community ties.
The court also assesses, among other things, the nature and seriousness of the offence, the strength of the prosecution case, the likelihood of a custodial sentence being imposed if the accused is convicted and how long the accused could spend in custody before facing trial.
"If there are no unacceptable risks, the bail authority must: (a) grant bail (with or without the imposition of bail conditions), or (b) release the person without bail, or (c) dispense with bail," the act says.
Mr Button will face court again on August 9.
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