Andrew O’Keefe arrested again for breaching bail

KEY TAKE-OUTS:

• Andrew O’Keefe has had a spectacular fall from grace with multiple criminal charges.
• On November 23 2022 Mr O’Keefe was arrested for breaching his bail conditions.
• One of the bail conditions, designed to prevent reoffending was that he refrain from drug use.
• Following a positive drug test, Mr O’Keefe was arrested for breaching his bail conditions.

Andrew O’Keefe is a well-known television presenter, best known for his role as host on channel 7 game shows “Deal or No Deal” and “The Chase Australia”. Mr O’Keefe was also previously the spokesperson for the anti-domestic violence charity, White Ribbon. However, in January 2022 Mr O’Keefe was arrested and charged with domestic violence offences. Mr O’Keefe is accused of assaulting a 38-year-old woman in his Sydney CBD apartment, grabbing her by the throat, pushing her to the ground and punching and kicking her. Mr O’Keefe was also charged with drug possession, for which he pleaded guilty. You can read more about Andrew O’Keefe’s matter on our website.

Despite originally being refused bail, in May 2022, Mr O’Keefe made an application to the Supreme Court of New South Wales, where bail was eventually granted. Mr O’Keefe was under strict conditions which included that he checked into a drug and alcohol rehabilitation clinic and stayed there for six months. He was also restrained from taking any alcohol or drugs that were not prescribed by a doctor. Mr O’Keefe has attended rehab nine times in an attempt to overcome drug addiction.

On 23 November 2022, NSW Police attended the home of Mr O’Keefe after a drug test returned a positive result. Mr O’Keefe was retained in custody, however, released the next day after the Court heard that Mr O’Keefe claims that the sample was contaminated and therefore the test result was not accurate.

What is bail in NSW?

Put simply, bail allows an accused person to remain in the community while waiting for their matter to proceed through the Courts.

If you are charged with an offence, depending on the type of offence, NSW Police may arrest you and take you into custody, or simply serve you with a Court Attendance Notice without. After formally charging you with the offence, NSW Police will provide you with a Court Attendance Notice. Following this, NSW Police will make a decision as to whether they will release you without conditions, grant Police bail with conditions, or refuse to grant you bail and retain you in custody. If Police refuse to grant you bail, you will be brought before a Court for a Magistrate to determine whether or not to grant you bail.

Will I be granted bail?

There are many factors the Court will consider when determining whether it is appropriate to grant bail.

There are two bail tests used by the Court:

1. The unacceptable risk test, and
2. The show cause test.

All persons who apply for bail are subject to the unacceptable risk test. However, not every person is subject to the show cause bail test as the test only applies to certain offences and circumstances.

The unacceptable risk test

Section 17 of the Bail Act addresses the unacceptable risk test,  which requires the consideration of the following risks before granting a person bail:

1. Whether the person will fail to appear in Court or leave the jurisdiction;
2. Whether there is a risk that the person will commit a serious offence;
3. Whether the person will endanger the safety of victims, individuals or the community;
4. Whether the person will interfere with witnesses or evidence.

It is common for at least one of these risks to be present, however the risk must be unacceptable in order for bail to be refused. In most cases, these risks can be overcome by the imposition of bail conditions. Any bail application must include proposed bail conditions in order to persuade the Court that no unacceptable risks are present.

What bail conditions can be imposed?

A variety of conditions can be imposed by the Court in order to grant bail. Some common bail conditions include the following:

1. A condition requiring the person to reside at a specific address;
2. A curfew condition preventing the person from leaving their home between specified times;
3. A condition requiring the person to report to police on a specified number of days;
4. A condition prohibiting the person from attending certain locations, including entire suburbs;
5. A condition prohibiting the person from communicating with certain persons;
6. A condition forbidding the person from entering international departure points;
7. A condition requiring the person to hand in his or her passport;
8. A condition requiring someone to deposit money as a means of security;
9. An alcohol and drug abstinence condition;
10. A condition requiring the use of a single mobile phone;

The show cause bail test

The show cause bail test is an additional test to the “unacceptable risk”, and only applies to adults in the following circumstances:

1. A serious indictable offence that involves:
   1. Sexual intercourse with a person under the age of 16 years; or
   2. The infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years;
2. A serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm if the accused person has previously been convicted of a serious personal violence offence;
3. If they are charged with an offence that is punishable by imprisonment for life, such as murder;
4. Offences involving a firearm;
5. Offences involving a military-style weapon;
6. Offences that involve the unlawful possession of a military-style weapon;
7. A serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon;
8. An offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act;
9. An offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code;
10. A serious indictable offence that is committed by an accused person:
    1. while on bail, or
    2. while on parole;
11. An indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order;

The show cause test requires the accused person to prove to the Court that their incarceration is not justified, which is generally considered to be a more difficult test to overcome.

If an arrested person is able to satisfy the Court that his or her detention is not justified, the Court is then required to consider the “unacceptable risks test” as explained above.

How to “show cause” in bail

The Bail Act does not provide a list or criteria of what constitutes showing cause in bail. A person can also rely on a number of factors in combination to show cause in bail.

Some examples include the following:

1. Being young and in custody for the first time;
2. That the Prosecution case is weak;
3. The unlikelihood of a prison sentence;
4. Medical reasons;
5. The fact that person does not present unacceptable risks;
6. The deposit of a large amount of money;
7. Exceptional hardship experienced by others (for e.g. family members);
8. Strong familial support;
9. The low-level seriousness of offending;
10. Delay in the matter proceeding;
11. Attendance at a drug rehabilitation.

Bail following a finding of guilt or entering a plea of guilty

Recently the Bail Act was amended, with the introduction of section 22B, which provides that, during the period following conviction, or upon entering a plea of guilty, 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 must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision. You can read more about this amendment on our website.