Wednesday, 25 June 2014

Bail and acceptable risk

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There is always a conflict between the interests of impartial justice, tabloid journalism and the very real pain experienced by victims of crime. Stuck in the middle of these three forces are state governments attempting to legislate in the interests of all their constituents.

It seems that there is perpetually some area of Law Order that is creating a kerfuffle in NSW. The latest debate is centring on the New Bail Act that was proclaimed earlier this year

Bail is a vexed topic for government. Aside from sentencing, it is the area of the criminal law that attracts the most attention and criticism

In short, the Bail Act defines whether and on what conditions persons who have been charged with offences can be released, pending the determination of their guilt or innocence, or alternatively, whether and on what conditions they should be released pending sentence

On one hand, there should be some natural resistance to persons accused of offences being denied bail and held in a gaol. Such a person has not been proved or pled guilty. As such, we should be slow to take away their freedoms based purely on an accusation of wrongdoing by the state. No doubt any ordinary person would be outraged to be punished before their guilt or otherwise was determined

Of course, that is not the way that many people would prefer that things work. Frequently we see faux-outraged politicians laying into lawyers, magistrates or judges because someone has been released on bail pending the hearing of their matter.

That is not to say that accused persons should never be kept in custody pending the hearing of a matter. There are frequently times where there is a clear risk of further offending or flight from the jurisdiction, which would justify keeping a person in custody. An obvious example would be a foreign national accused of drug smuggling, or a person who police suspect, upon firm grounds, of being involved in a series of break and enters. The police are right to, on behalf of the community, argue that the courts should deny such a person bail

It is quite wrong, however, to start from the presumption that a person should be denied purely on the basis of the seriousness of an allegation made against them.

This was the fundamental problem with the old NSW Bail Act. The act deliberately and laboriously provided a specific series of presumptions that applied for any offence with which a person might be charged. At one extreme, most persons charged with minor offences have a “right to release on bail”. Moving up the ladder, some offences had a presumption in favour of bail. There were further categories where there was no presumption, where there was a presumption against bail being granted, and finally a small category of offences were bail should not be granted unless it was shown that there were “exceptional circumstances”

This system was not satisfactory for a number of reasons. For a start, it placed the focus primarily on the alleged offence, rather than the accused person. The web of complex, interwoven presumptions created confusion for all parties, and frequently made the system seem more than a little arbitrary

The new Bail Act seeks to remedy this situation by directly addressing the question “for what purpose it is being argued that a person should be denied bail?” The new Bail Act focusses on whether there is an unacceptable risk if the person is released on bail

The unacceptable risks must be one of the following:

- A risk the person will fail to appear in court

- A risk the person will commit a serious offence whilst on bail

- A risk the person will endanger the safety of victims, the individual or the community, or

- A risk the person will interfere with witnesses or evidence.

If the person poses an unacceptable risk in one of the above categories, the court is then to consider whether the risk can be ameliorated through bail conditions. For example, a risk that the person might flee the jurisdiction could be dealt with by confiscating their passport. A risk the person might commit a serious offence could be limited by forbidding contact with certain persons or from being in certain locations

No doubt people will still be denied bail under the new act. However, the decision to deny people bail is now being made based on an assessment of the potential consequences if they are released, rather than a blunt categorisation of the offence they were alleged to have committed

This subtlety has, however, been somewhat lost on the media, which immediately focused on the perceived injustice of persons accused on serious offences being released pending trial

In this Sydney Morning Herald article, the family of an accused murder victim complained about the victim’s husband and accused murderer being released on bail pending his trial.

The allegation was that in 1997 he has killed his wife. Whilst the details of the application have been suppressed (no doubt to preserve the accused’s right to a fair trial) it seems likely that the arguments advanced by the defence suggested that the age and nature of the allegation meant that there was no unacceptable risk if he was to be released on bail. It may well be that the prosecution was unable to articulate in any meaningful way how it was that the accused person posed a risk to the community

Without wanting to sound insensitive to the pain being suffered by the family of the victim, it is unclear from the reports precisely what it is that the community is to be afraid of if this person was accused pending trial. Is there any evidence suggesting that he is likely to offend again if he is released pending trial? Is there any evidence that he will interfere with witnesses, or that he will not appear at his trial? If not, he should not be pre-emptively punished before his guilt or innocence is determined

He has not been excused from punishment - if he is found guilty there is little doubt he will spend a long, long time in gaol. As he should. All that the court has determined is that it is not appropriate to begin punishing him until a jury decides that he is in fact guilty of the crime for which he has been charged

Obviously this legal argument is cold comfort to victims of crime and their families. It would be unfair to expect anything different.

But the legal system is not, and should not, be constructed on the feelings of victims. People should not routinely be pre-emptively punished unless there are compelling reasons to take a different approach

It remains to be seen whether the NSW government can hold its nerve in face of what is likely to be a sustained attack from the usual suspects.

UPDATE: Just two days after the above piece was published, the NSW Premier and Attorney General announced that the new Bail Act was to be "reviewed". The AG was quoted as saying "We will ensure that the new Act is applied as the government intended."

Andrew Tiedt

Andrew is a criminal defence lawyer from Sydney. 

Follow him on twitter @mrtiedt