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Townsley, Lesley --- "Returning to Presumptions and the Erosion of Fundamental Rights: The Bail Amendment Act 2014 (NSW)" [2015] UTSLRS 24; (2015) 40(1) Alternative Law Journal

Last Updated: 21 April 2017


This work was first published in

Alternative Law Journal 40(1) 2015



RETURNING TO PRESUMPTIONS AND THE EROSION OF FUNDAMENTAL RIGHTS
The Bail Amendment Act 2014 (NSW)

LESLEY TOWNSLEY

This article considers the amendments to the Bail Act 2013 (NSW) which alter the way bail decisions are made. The Bail Amendment Bill 2014 (NSW) was passed on 17 September 2014 and the Bail Amendment Act 2014 (NSW) was assented to on 25 September 2014.1 This article argues that these amendments represent the perpetuation of punitive bail policy which, among other things, effectively reintroduces a scheme of presumptions against bail. It is further argued that the government’s reaction to a minority of public opinion coupled with the erosion of the presumption of innocence and the general right to be at liberty, demonstrates the recurrence of similar factors which led to significant and multiple amendments to the Bail Act 1978 (NSW). The article begins by outlining the amendments to the Bail Act 1978 which expanded the list of offences for which there was a presumption against bail and the circumstances in which these amendments were made. The enactment of the Bail Act 2013 (NSW) is then considered with a focus on how the provisions of this Act simplified the law and restored fundamental principles in bail decisions. This is followed by a discussion of the factors which led to the current reforms and detailed consideration of how the amending Act reintroduces a scheme of presumptions against bail and undermines the rights of an accused person.

Policy considerations

At the time of its enactment the Bail Act 1978 was intended to balance the community concern for safety against the right to liberty of an accused person presumed to be innocent until proven guilty.2 Under this Act the decision of whether or not to grant bail depended, amongst other things, on the crime the person was charged with. This Act was based on a justification model meaning that detention had to be justified. Over the years amendments spanning 28 different Acts created a complex system of presumptions that were used to determine the entitlement to bail.3 Many of the amendments expanded the list of offences for which there was a presumption against bail. For example, there was a presumption against bail for certain drug offences (s 8A), firearms offences (s 8B), repeat property offences (s 8C), major public disorder and riot offences (s 8D), or where the accused was on lifetime parole (s 8E). A presumption against bail meant that a person was not to be granted bail unless they satisfied the bail authority that bail should not be refused. Additionally, where a person was charged with murder (s 9C) or was a repeat offender of serious personal violence (s 9D), bail was only granted if the accused could demonstrate exceptional circumstances. The amendments expanding the offences for which there was a presumption against bail were sometimes a reaction by the government to adverse media and community sentiment over the granting of bail to certain individuals who were accused of serious crimes.4 The presumptions that restricted bail for certain offences or classes of offender, represented the punitive direction in which the policy on bail was moving.5 As a consequence, the balance sought to be initially achieved in the Bail Act 1978 was tipped in favour of community concern for safety, and the presumption of innocence and the general right to be at liberty were increasingly eroded.

The Bail Act 1978 was repealed and was replaced by the Bail Act 2013 which commenced on 20 May 2014. In its original form the Bail Act 2013 made several changes including the removal of presumptions for the purpose of simplifying the law on bail. Another significant change was that the test for determining whether bail should be granted went from an initial determination of the probability that the person would turn up to court to ascertaining whether there was an unacceptable risk that if released from custody the accused person would fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community or interfere with witnesses or evidence (s 17(2)). Under this model the decision to release or detain a person is initially determined by the individual risk they pose not, as with the presumptions under the previous bail law, by the offence they had allegedly committed. In determining whether there is an unacceptable risk the bail authority had to consider factors such as the accused’s background, history and circumstances and the nature and seriousness of the offence (s 17(3)). Where a person presented an unacceptable risk which could not be mitigated by bail conditions then they would not be released on bail (s 20(1)).

Importantly, a stated purpose of the Bail Act 2013 was that a bail authority should have regard to the presumption of innocence and the general right to be at liberty (s 3(2)). As the cases discussed below show, the principles in section 3(2) were the lens through which the determination of unacceptable risk in section 17 was assessed.6 Additionally, in the second reading speech for the Bail Bill 2013 (NSW) the Liberal MP John Ajaka stated that a bail authority:

will also need to have regard to the presumption of innocence and the general right to be at liberty in making the assessment. The mandatory factors set out in the bill reflect both the need to consider the protection of the community and the needs to consider the rights of the accused person.7

The Bail Act 2013 was drafted to realise this intention and therefore attempted to reinstate the important principles of the presumption of innocence and the general right to liberty which were eroded under the many amendments to the Bail Act 1978. However, one month after the commencement of the Bail Act 2013 the Premier, Mike Baird, and the Attorney-General, Brad Hazzard expressed concern that the application of the Act did not reflect the intention of the government to ensure that the paramount consideration in making a bail decision was the safety of the community, victims and witnesses.8 It would appear that although the Bail Act 2013 reflected the Liberal government’s intention at the time of enactment a change in leadership brought a change in priorities.

Factors leading to the reform of the Bail Act 2013

Why did community safety become a paramount consideration when, as indicated by John Ajaka above, this consideration was supposed to coincide with the presumption of innocence and the general right to be at liberty? This shift was apparently caused by a perception that the scales had tipped too far in favour of accused people. In order to address this problem the government ordered a review of the Bail Act 2013. The review was undertaken by the former Labor Attorney-General John Hatzistergos, who had introduced the controversial section 22A into the previous Bail Act 1978, which had restricted the number of bail applications that that an accused person could make. I have outlined elsewhere how the proliferation of presumptions against bail and the introduction of section 22A were apparently based on political imperatives and moral outrage over abhorrent high-profile cases resulting in irrational law making.9 The government’s recent reaction to a minority of public opinion and amending the Act to erode the rights of an accused person is reminiscent of the reaction and factors influencing previous bail policy and the subsequent amendments made to the Bail Act 1978. This evolution of punitive bail policy is evidenced in the Bail Amendment Act 2014 (NSW).

The decision to review and amend the Bail Act 2013 was primarily in reaction to two ‘controversial’ bail decisions: R v Fesus10 and R v Hawi.11 The accused in Fesus is charged with murdering his wife. This was the third application for bail but the first under the Bail Act 2013. New information as to the cause of death of the victim, which was not available in the previous bail hearings, meant that there was a ground for a further application under section 74(3)(b) allowing the bail authority to reconsider bail. In setting out the factors to be considered under the Bail Act 2013, Adams J begins with section 3 and then section 17. In the judgment the facts relevant to the application of section 17, particularly as to the strength of the prosecution’s case, were redacted. It is therefore difficult to ascertain how much the application of the factors in section 3(2) influenced the assessment of unacceptable risk. Justice Adams alludes to the different test under the Bail Act 1978 for the charge of murder but only to note that the relative significance of factors in determining a grant of bail such as the nature and seriousness of the offence, the presumption of innocence, the right to be at liberty, and the strength of the prosecution case, is different.12 In other words, because of the lack of presumptions under the Bail Act 2013, Fesus did not have to demonstrate that exceptional circumstances existed in order to be granted bail. Fesus was granted bail subject to providing a character acknowledgment and the imposition of conduct and security conditions. The government has not suggested that Adams J applied the law incorrectly and so this case seems to be controversial because Fesus was released on bail notwithstanding the charge of murder.

Mick Hawi was the president of the Comancheros motorcycle club and is accused of killing Anthony Zervas, who was associated with the Hells Angels motorcycle club, in a brawl at Sydney Airport in 2009. Hawi was charged with affray and murder. Like
Fesus, Hawi was refused bail twice under the
Bail Act 1978. Hawi was convicted but on appeal his conviction was set aside and a retrial was ordered. Hawi then applied for bail under the Bail Act 2013. Harrison J begins by outlining the relevant factors in section 17 and assesses whether there was an unacceptable risk. Harrison J identifies the possibility of failure to appear and endangering the safety of individuals and the community as unacceptable risks and granted bail because those risks could be mitigated by imposing conduct and security conditions. Under the Bail Act 1978 Hawi would have had to demonstrate exceptional circumstances to be granted bail. Interestingly Harrison J does not explicitly mention section 3(2) but makes reference to the presumption of innocence and the right to be at liberty as factors to be balanced with the protection of the community concluding that ‘neither side of that equation is necessarily or obviously entitled to more weight than the other.’13

Justice Harrison is aware of the controversy surrounding bail applications in high profile cases stating:

the Bail Act 2013 has attracted a great deal of public attention in some sections of the media. ...The conclusions and decisions I have reached in this case ought to inform that debate as a small part of a continuing public discourse.14

The decision to grant Hawi bail did attract negative public attention but unfortunately it did not create a balanced and reasoned debate. Rather, the government response was to react to this minority of opinion by amending the Bail Act 2013 in ways which undermine the presumption of innocence and the general right to be at liberty.

Reintroducing a scheme of presumptions

The Bail Amendment Bill 2014 was introduced into the Legislative Assembly on 13 August 2014. The Attorney-General stated that the ‘key feature of the Bill is the increased stringency it applies to bail decisions. ... It requires people charged with offences to show cause why their detention is not justified.’15 This is similar to the show cause requirements in section 16 of the Bail Act 1980 (Qld) and section 4 of the Bail Act 1977 (Vic). The show cause requirement only applies to certain serious offences (s 16A) and section 16B lists the offences. What is immediately apparent is that many of those offences are the same offences that attracted the presumption against bail in the Bail Act 1978. For example, the offences in section 16B include an offence that is punishable by imprisonment for life (eg, murder). This would have attracted the presumption in section 9C, serious personal violence offences would have attracted the presumption in section 9D, certain firearms offences would have attracted the presumption in section 8B, and certain drug offences would have attracted the presumption in section 8A.

Without using the language of presumptions the government has reintroduced them by placing the onus on a person accused of certain offences to show cause for why their detention is not justified. This provision assumes that for these kinds of offences detention is justified despite the fact that the person has not been found guilty according to law. Therefore, inclusion of the show cause requirement is a reinstatement of the presumption against bail and reflects the government’s intention to make community safety a paramount consideration and to give the rights of accused people less consideration. As with the criticisms levelled at the previous scheme of presumptions, this is a significant erosion of the presumption of innocence and general right to be at liberty.

Additionally, the presumptions under the Bail Act 1978 were consistent with the justification model employed in that Act. That model required the justifiability of detention by applying the presumptions and the criteria to be considered in bail applications in s 32. When there was a presumption against bail, this indicated that detention would be justified unless the accused person could convince the bail authority that bail should be granted. As mentioned previously, the Bail Act 2013 moved away from the justification model and implemented a risk model. However, the show cause requirement effectively implements a justification requirement. On the face of it this combination of approaches is not controversial, Queensland and Victoria employ similar models, but introducing a justification requirement indicates a punitive turn in bail policy which counteracts the weight given to the presumption of innocence and the general right to liberty as it was in Fesus and Hawi. The reintroduction of presumptions for certain classes of offender or certain classes of offence indicates that the government is repeating the reactions of their predecessors by amending the Act based on political imperatives and thereby eroding the presumption of innocence and the general right to be at liberty.

Other significant amendments

Section 16 of the Bail Act 2013 illustrated the key features of a bail decision as determined in sections 17-20. Under these provisions the bail authority firstly had to determine whether there was an unacceptable risk. If there was no unacceptable risk then the person was unconditionally released. If there was an unacceptable risk the bail authority had to consider whether conditions would sufficiently mitigate the risk. If conditions would mitigate the risk the person was released conditionally and if conditions would not mitigate the risk then bail would be refused. Sections 16, 17, 18 and 19 will be amended by the Bail Amendment Act 201416 which changes considerably the process of making a bail decision and the outcomes of a bail decision.

In the amendment to section 17(2) the bail authority will first assess whether there are any bail concerns regarding fail to appear, commit a serious offence, endangering the safety of victims, individuals or the community, or the potential interference with witnesses or evidence. Section 18 will be repealed and replaced with matters to be considered as part of the assessment of bail concerns. The term ‘unacceptable risk’ does not appear in the amended sections 17 and 18, instead it is replaced with the term ‘bail concern’. While this linguistic modification may seem minor it indicates a turn away from initially assessing risk to an unacceptable standard, when considering the individual circumstances of an accused person, toward initially assessing risk based on ‘concern’ which is a lower threshold. That is, the determination of whether there is an unacceptable risk is based on the assessment of bail concerns (s 19).

The matters to be considered in the assessment of bail concerns in the amended section 18 are largely the same as the factors in the former section 17(3) such as the accused’s background, the nature and seriousness of the offence, the length of time the person is likely to spend in custody if bail is refused, and any special vulnerability of the accused. The amendment to section 18 expands these factors including that bail conditions could reasonably be imposed to address any bail concerns (s 18(1)(p)). After assessing the bail concerns the bail authority will make a determination of whether or not there is an unacceptable risk pursuant to section 19. Under section 19 if there is an unacceptable risk bail will be refused even where previously conditions could have been imposed to mitigate the risk. If there is no unacceptable risk the bail authority must consider whether bail conditions are necessary to address any bail concerns and thus whether release will be conditional or unconditional (s 20). Under the amendments sections 17 and 18 will also apply to an offence for which there is a right to release.

The blanket refusal of bail to people who pose an unacceptable risk, no matter what degree of risk, is not only likely to increase the remand population it also erodes the presumption of innocence and the general right to liberty. In their submission on the review of the Bail Act 1978, Corrective Services NSW stated that its records in 2010 indicated that 55 per cent of persons on remand were ‘unconvicted’ on the date of their release.17 Corrective Services NSW defines ‘unconvicted’ persons as including those who were released on bail, or who received a non-custodial sentence, or where the person had served the full sentence while on remand, where the charges were dismissed, or where the person was acquitted. Thus a significant portion of people remanded do not receive prison sentences or are not guilty and this, coupled with the refusal to grant bail to people who pose an unacceptable risk that could be mitigated by conditions, implies that there will be an increase in the imprisonment of potentially innocent people.

Another example of the erosion of the presumption of innocence and the general right to be at liberty is the repeal of section 3(2) of the Bail Act 2013.18 Under section 3(2) a purpose of the Act was that a bail authority was to have regard to the presumption of innocence and the general right to be at liberty. These principles will now be reflected in the Preamble to the Act which sets out the underlying principles the Parliament has had regard to in enacting the Act. In several decisions under the Bail Act 2013 the bail authority explicitly applied the principles in section 3(2) in determining whether there was an unacceptable risk in section 17.19 In other words the determination of unacceptable risk was considered in the context of the purpose of the Act stated in section 3(2). For example in R v Morris McCallum J stated:

In determining the application, I am required to have regard to the presumption of innocence and the general right to be at liberty: s 3 of the Act. The weight of that consideration is reinforced in the present case by relevant evidence of the applicant’s background which, in my assessment, plainly places her in the category of a person with special vulnerability: cf s 17(3)(j) of the Act.20

The repeal of section 3(2) does not necessarily mean that a bail authority will not have regard to the presumption of innocence and general right to be at liberty when making a bail determination. However, an anticipated result of repealing section 3(2) is that these principles will be given less prominence and therefore less weight in the determination of whether or not bail should be granted.

Conclusion

As with the intention at the time of enactment of the Bail Act 1978, the enactment of the Bail Act 2013 attempted to restore the balance between community concern for safety and the presumption of innocence and the general right to be at liberty. However, the provisions of the Bail Amendment Act 2014 further the government’s imperative to give ‘paramount consideration’ to the principle of community safety in determining bail applications and in doing so will make it more difficult for people to obtain bail. The strategy to promote community safety has involved the reintroduction of presumptions through the show cause requirement, the refusal to grant bail where there is an unacceptable risk no matter what level of risk, and removing the presumption of innocence and the general right to be at liberty as a stated purpose of the Act. Increasing the weight given to the principle of community safety has therefore been achieved by eroding the presumption of innocence and the general right to liberty. Many of the amendments to the Bail Act 1978 created the same imbalance between these competing principles. If history is repeating, as it appears to be, we can expect many more amendments to the Bail Act 2013 which will almost certainly arise because of reactions to particular accused people in high profile cases being granted bail and the government’s typically impulsive responses to any public criticism about those decisions.

LESLEY TOWNSLEY teaches law at University of Technology Sydney.

© 2015 Lesley Townsley

REFERENCES

1. At the date of writing the Act had not commenced.

2. Rachel Simpson, ‘Bail in New South Wales’ Briefing Paper No 25/97 New South Wales Parliamentary Library Research Service, 7.

3. New South Wales Law Reform Commission, Bail, Report No 133 (2012) 30.

4. Ibid.

5. Ibid 41-2.

6. See also R v Lago [2014] NSWSC 660 where in considering the s 17(3) factors Hamill J clearly makes the assessment of whether there is an unacceptable risk through the lens of s 3(2).

7. New South Wales, Parliamentary Debates, Legislative Council, 22 May 2013, 20554 (John Ajaka, Parliamentary Secretary).

8. ‘Premier Mike Baird Orders Review of New Bail Laws after One Month’ ABC News (online), 27 June 2014 <http://www.abc.net.au/news/2014-06-27/nsw-govenrment-orders-review-of-its-new-bail-laws/5555816> .

9. Tracey Booth and Lesley Townsley, ‘The Process is Punishment: The Case of Bail in New South Wales’ (2009) 21 (1) Current Issues in Criminal Justice 41, 45.

10. [2014] NSWSC 770 (hereinafter Fesus).

11. [2014] NSWSC 837 (hereinafter Hawi).

12. R v Fesus [2014] NSWSC 770, [8].

13. R v Hawi [2014] NSWSC 837 [55].

14. Ibid [53].

15. New South Wales, Parliamentary Debates, Legislative Assembly, 13 August 2014, 9 (Brad Hazzard, Attorney-General).

16. The provisions in the amending Act and the Bill are the same.

17. Corrective Services NSW Submission on Review of Bail Act 1978, 1 (undated) <http://www.lawreform.justice.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/cref129_ba29.pdf> .

18. Bail Amendment Act 2014 (NSW) cl 2.

19. See R v Fesus [2014] NSWSC 770; R v Hawi [2014] NSWSC 837; R v Lago [2014] NSWSC 660; R v Paul (Unreported, Supreme Court of New South Wales, Schmidt J, 28 May 2014); R v Justice (Unreported, Supreme Court of New South Wales, Schmidt J, 28 May 2014).

20. R v Morris (Unreported, Supreme Court of New South Wales, McCallum J, 20 May 2014), 1.


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