Bail Final Report Launch Speech
Professor Neil Rees, 10 October 2007
One aspect of this reference has been relatively straightforward; everyone agrees that Victoria’s Bail Act is unnecessarily complex and needs re-writing.
Bail decisions are always important, and often difficult. The stakes are high; the decision maker must weigh interests of individual liberty against those of protection of the community. Should a person remain in custody until he or she is tried for an offence and perhaps acquitted, or should that person be released on bail even though there may be risks of flight or of offending?
People without legal qualifications make most bail decisions. The vast majority of bail decisions—nine in ten—are made by police officers. Bail justices make ‘out of hours’ bail decisions when the police have refused bail.
While bail decisions are seldom easy, both the process of decision-making and community acceptance of those decisions can be enhanced by modern, clear bail laws.
There is a need to rewrite the Bail Act so that everyone who uses it, or is affected by it, can understand the law.
The current Act was written 30 years ago, when plain English drafting did not have the prominence it does today.
While many amendments have been made over the years – the Bail Act has been amended on 37 separate occasions since 1977 - the structure, language and drafting style remain the same.
Consequently, we have recommended that the Bail Act and its forms be restructured and rewritten to make them easier to understand.
Simplifying bail decisions
While it is usually necessary to establish why an accused person should not be granted bail, the current Bail Act contains a list of offences where the general entitlement to bail does not apply. We recommend removing these so-called ‘reverse onus’ offences to clarify the bail decision-making process for everyone involved.
Reverse onus offences do not mean bail is denied, but they do mean that accused people must argue why they should be given bail, rather than prosecutors arguing why they shouldn’t receive bail.
There are no clear principles which govern why ‘reverse onus’ tests apply to some offences and not to others. For instance, a ‘reverse onus’ applies to murder and aggravated burglary, but not to rape and attempted murder.
While these provisions may give the appearance of being “tough on crime”, there is no link between the proportion of people who are remanded in custody before trial and the existence of reverse onus offences.
In South Australia there are no reverse onus offences but remand levels are the second highest in the country.
Victoria has reverse onus offences but also has one of the lowest levels of remand.
Decision-makers told us that the most important test is whether an accused person would present an unacceptable risk if returned to the community.
Removing the reverse onus tests will allow decision makers to concentrate on the key questions which arise when unacceptable risk is determined.
At least four matters must be considered when deciding whether it is an unacceptable risk to release a person on bail. They are whether the person will:
• turn up in court;
• offend while on bail;
• pose a risk to victims; or
• pose a risk to witnesses or the legal process.
These unacceptable risk factors should guide all bail decisions.
The commission does not believe that streamlining the decision-making process by focussing upon unacceptable risk will affect the ultimate outcome of bail decisions, but we do believe that it should make hearings quicker, simpler and more transparent.
We have also recommended strengthening the position of victims of crime by requiring decision-makers to consider victims’ safety and welfare when deciding whether to grant bail.
We have also suggested that victims of violent and sexual crimes be told about the outcomes of bail hearings.
They should also be told about any conditions imposed on accused people that are designed to protect them.
Police and bail
Bail decisions are made only for people who are arrested and then charged with an offence.
There are no rules for police to follow when deciding whether to charge someone with an offence and to detain them in custody until released on bail, or to issue a summons which directs the person to attend court at a later date.
This lack of direction can lead to anomalies. For instance, this can lead to someone accused of a minor offence, such as shoplifting, being charged and having to face a bail hearing, while someone charged with a serious offence, such as rape, can receive a summons.
We recommend that Victoria Police issue a policy to ensure its officers receive appropriate guidance about this decision.
At the moment, police are required by law to take people seeking bail to a court if it is open, but we heard that in practice police will grant bail for minor offences even if a court is open.
We recommend police be allowed to grant bail if a court is open, but if they decide to remand people they must take them to court.
Police are having to do their job using a database that is not always updated quickly. This means accused people can be bailed for offences while they are already on bail for other offences.
We make recommendations to improve Victoria Police’s record-keeping systems and require police to check if accused people are already on bail when making bail decisions.
Police, bail justices and magistrates are able to decide bail for all offences except for murder. This doesn’t make sense when they can make bail decisions for other serious offences that carry the same penalty as murder. We recommend that all decision makers can decide bail for all offences.
Sureties
The Tony Mokbel case has highlighted the issue of sureties and bail.
In that case, Mokbel’s sister-in-law, Renata Mokbel, put up $1 million as a guarantee that he would attend court. When Mokbel fled the country, his sister-in-law was required to pay the $1 million. When she was unable to do that, she received the maximum penalty of two years jail.
We recommend new measures that would strengthen the checking that must take place concerning a surety’s suitability to guarantee the attendance in court of a person released on bail and of the surety’s assets and capacity to pay if the bail monies must be forfeited. In order to enhance understanding, sureties should be known as bail guarantors because that is what they do.
At the other end of the scale, we also recommend decision makers set the amounts to be forfeited according to the person’s ability to pay in order to avoid discrimination against accused people who don’t have wealthy friends or family.
We were asked to consider the maximum penalty for failing to pay the money which has been guaranteed in the event that the accused person fails to appear. The Mokbel case is the only instance we could find of this penalty being used.
Victoria is the only state, other than Queensland, to impose a jail penalty for failure to pay. The commission believes that the current two-year sentence is appropriate and should not be altered.
Other Recommendations
The report makes 157 recommendations to improve the clarity of the Bail Act and to improve processes so that bail laws operate as simply, clearly and fairly as possible.
Other areas marked for reform include:
• bail conditions
• the oversight and conduct of bail justices
• consideration of marginalised groups within the system
• and court processes.
May I take this opportunity to thank and congratulate the division of the commission, chaired by Justice David Harper, and the staff of the commission, led by Angela Langan, who were responsible for the preparation of the report.
If you haven’t already picked up a copy of the bail report, they are available at the front desk.
Thank you for attending the launch today.