I haven’t spoken out, I haven’t gone to rallies. I haven’t even signed any petitions. Not that I haven’t cared, but everyone else seems to be doing and saying what I wanted to. I take my hat off to those who have spoken out of late. So why am I writing this? A recent review on proposed Queensland legislative amendments (Bills) has pricked my interest and finally gotten my hackles up. Bail! Such an innocuous thing in comparison with other more heady matters, but it is such a fundamental matter that I could not stand to saying nothing any longer.
Bail has been an aspect of the criminal justice scheme for just about forever. Arguably there has been no right to bail under the common law, merely a prohibition against excessive bail. But bail in one form or another has existed for millennia and across the jurisdictions and continents. It may not have started as a right, but its position in the criminal justice process is one fully deserving of protection. The Statute of Westminster 1275 set out what crimes were bailable and which were not. Miltron Konvits argues that unless this so called right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.1 Indeed, the right to bail is reflected in the International Covenant on Civil and Political Rights which came into effect for Australia on 28th January 1993. Article 9 provides:
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. (emphasis added)
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
In Queensland of course, bail is regulated by the Bail Act 1980. Section 9 of the Bail Act imposes upon Courts an obligation, subject to the rest of the Act of course, to grant bail to a person who has not yet been convicted of the offence of which they are charged. Section 16 sets out the circumstances in which bail shall be refused. In particular s. 16(3) currently reverses the onus of proof and obliges the Court to refuse bail unless the defendant shows cause why detention in custody is not justified (the show cause situation). This situation is limited to:
(a) where the person is alleged to have committed an indictable offence whilst already on bail;
(b) an offence where s. 13 of the Bail Applies (where only the Supreme Court can grant bail eg murder);
(c) the commission of an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance;
(d) an offence against the Bail Act.
So, in the majority of cases coming before the Court, there is what I call a presumption of bail.
The Bail and Penalties and Sentences Amendment Bill 2007 was introduced into the Queensland Parliament on 24th May 2007. Section 16(3) — the current show cause provision, is to be omitted and replaced with the following:
‘(3) If the defendant is charged with an offence against an Act (other than this Act) for which the maximum penalty is at least 2 years imprisonment or with an offence against this Actâ
(a) the court or police officer must refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified; and
(b) if bail is granted or the defendant is released under section 11A,1 the court or police officer must include in the order a statement of the reasons for granting bail or releasing the defendant.’.
The justification for this change, outlined in the Explanatory Notes to the Bill, is said to be:
Despite no general right to bail and, more specifically, the legislative requirement to satisfy a court or police officer that a person’s release from custody is justified, there is increasing public outcry that bail is being granted too leniently. There is also growing community concern that persons are being released from custody in circumstances where their charges and previous offending history indicate that they should not be.
Media reports of persons committing serious offences whilst on bail for a prior offence are frequent. The financial and time costs that this re-offending places on the Courts, police and other justice agencies is significant. The community also undoubtedly suffers through repeat crime; through reduced security and safety; and through the diversion of police resources to attend to new criminal matters. Moreover, an alarming number of people who are released from custody ultimately breach bail warrants, failing to appear in court on charges they face. The number of people who breached bail warrants in south-east Queensland between 1 July 2005 and 12 June 2006 was 14,689.
The apparent source of this last statement was “Peter Gleeson, ‘Bailed to disappear: killers, rapists roam free as 15,000 warrants breached’, Gold Coast Bulletin, 27 June 2006, p 4.” To get that figure into context, the Legal Aid Queensland 2005-2006 Annual Report recorded that duty lawyers appeared for 60,153 children and adults in 2005-2006 financial year in the whole of the State. What that statistic really means is open to debate.
There will therefore now be few if any offences for which bail will be presumed. Most offences criminal lawyers come across in court now carry 2 years’ imprisonment. The presumption of bail will become a myth. Where will we put all these people? And what is to happen to those who will spend more time in prison on remand awaiting a trial than they will ultimately receive in sentence? Or those who would never have received a custodial sentence in the first place.
I am now moved to speak up, what are we to do with no house of review in this state? Will our representatives take it upon themselves to be the champions of our rights and protections? With the sorts of figures quoted in the Gold Coast Bulletin, I doubt it. Oh, by the way just to top of the new scheme, under the proposed amendments good conduct on bail is not relevant to sentence, but bad conduct will be!
I am reminded of the poem, attributed to Pastor Martin Niemöller (for those of intellect, I have chosen one of the many variants, as published in Time 28th August 1989 — 50th Anniversary WWII):
First they came for the Communists, and I didn’t speak up,
because I wasn’t a Communist.
Then they came for the Jews, and I didn’t speak up,
because I wasn’t a Jew.
Then they came for the Catholics, and I didn’t speak up,
because I was a Protestant.
Then they came for me, and by that time there was no one left
to speak up for me
I had better go, I think I hear someone at the door …
Darin Honchin
Footnote
- Konvitz, MR “Bill of Rights Reader: Leading Constitutional Cases” Cornell University Press 1960 p. 702
