Unfair bail laws used as punishment: magistrate

Geesche Jacobson | SMH | 26 October 2011

BAIL laws are too complex and suspects are often kept on remand as a ''form of pre-emptive punishment'' or granted bail only on ''draconian and ultimately pointless conditions'', the state's most senior magistrate has said.

The Chief Magistrate, Graeme Henson, said prosecutors had a ''culture that bail should be opposed'' and that the judiciary was often ''forced into a semblance of complicity'' in executing their agenda.

His comments are contained in a frank submission to the NSW Law Reform Commission's review of bail laws, which is expected to hand down its findings within weeks.

The review, a government election promise, was sparked by the large increase in the percentage of the state's inmates who have not been convicted of any crime but are in prison because they were refused bail.

It also follows a call last year by the Chief Judge of the District Court, Reg Blanch, for a review of bail laws.

Last June, a quarter of inmates - or 2624 people - were on remand, compared with 11 per cent in 1994.

Bail laws were progressively tightened under the previous government in what the submission by the Office of the Director of Public Prosecutions called ''ad hoc legislative responses in a get tough on law and order climate''.

Most submissions favour a relaxation and simplification of the laws to cut the number of people - up to 30 per cent - who are eventually acquitted after spending time in jail. The Attorney-General, Greg Smith, said last year it was only a lack of funds that stopped many of these people suing the state government.

Even the DPP and Corrective Services are critical of current laws and most submissions say accused people should be free unless they are a risk to the public or might fail to turn up in court.

Prison authorities have recommended a trial of ''e-bail'', or electronic monitoring of people on bail.

One contributor to the rise in the number of people on remand has been the introduction of a ''presumption against bail'' for certain offences.

This, says the submission by Legal Aid NSW, has equated the chances of getting bail of people breaking into the school tuckshop with those who have committed an armed home invasion.

These categories were ''illogical and difficult to apply'', said Mr Henson, who calls for the abolition of the presumption against bail based on offences.

He is also critical of the provision that restricts repeated bail applications, saying that it has had ''a disproportionate impact on defendants in positions of social disadvantage, such as the homeless''.

This year a homeless man had serious charges against him dropped after spending more than a year in prison, having been refused bail as he had no steady address.

Mr Henson is also critical of ''overly complex and onerous'' bail conditions, a submission mirrored by others. The Legal Aid submission opposes strict conditions, including curfew, for children and cites the example of ''Kristy'', who became homeless after constant police checks on her curfew disrupted her family and neighbours.

He also suggests a trial of ''pre-charge bail'', as used in Britain, which would allow police to release a person on bail, while deferring the decision to charge.

A view from the Bench

One of the most respected figures in the NSW criminal justice system is Justice Reg Blanch, Chief Judge of the District Court.

He served as NSW's first Director of Public Prosecutions, before then overseeing the administration of the District Court across the State. He drove huge improvements in the efficiency of the Court, including cutting the long waiting lists for trials, a reform which had a very real effect on both victims and prisoners remanded in custody. At the same time, he has exerted a huge influence over the largest Court in the State, the Local Court, by deciding appeals from Magistrates in Sydney, as well as continuing to sit in the Court of Criminal Appeal.

Justice Blanch rarely speaks in public, but last June gave a speech to a Legal Aid Commission conference that was reported here by Joel Gibson in the SMH. It was reported that Blanch:

• made an extraordinary call for a rethink on law and order policy in NSW, saying excessive sentences and imprisonment rates have created a billion-dollar-plus prisons budget without a corresponding increase in public safety.

• called for a ''calm review'' of bail laws, standard non-parole periods, mandatory disqualification for some driving offences and the definition of some sexual assaults, which had all contributed to a record prison population of more than 10,000

• said that NSW had lost the correct balance between the need to protect the community and the cost to the community of that protection.

• had, by his comments, contradicted the claims of the state government that packed jails were keeping people safer.

The following of Blanch's speech was also reported:

• While Victoria spent half as much on jailing people, he said, ''I venture to suggest that there is no greater level of safety in NSW and that the level of crime is no less as a result of the increase in sentences.

• ''Jail sentences must be imposed in many cases, and in some the sentence should be substantial, but the real question is: how much is enough?

• ''Do we need to spend a billion dollars on prisons and could we achieve the same ends at a lesser cost?''

• A quarter of the state's prisoners had not yet been convicted of an offence, he said. ''On the whole it has to be said almost all persons on bail answer their bail and, although there are instances of offences committed on bail, it cannot be said to be a common occurrence.''

• Sentencing had also become disproportionate to many crimes, with the result that offenders were held in jail for longer, meaning many had ''extreme difficulty'' re-integrating into society, he said.

• And driver's licence cancellations had resulted in the jailing of drivers who could not be considered dangerous. This hit rural communities especially hard.