03 September 2007

Loss of presumption of innocence in NSW

Bail is a mechanism to ensure that a person charged with an offence will eventually turn up at court to be tried. The bail court has to decide whether a person is likely to abscond, and if so, will either remand the accused in custody or impose conditions of bail so that the person remains free prior to trial.

Under section 31 of APEC Meeting (Police Powers) Act 2007 (NSW) the presumption of bail is removed if the alleged offence relates to violence against a police officer or malicious damage. Now, these are rather odd offences to pick on to remove a right to bail. It seems to me that it is either preventative detention or summary justice. In fact, I think it is both.

Of course both offences are are very unpleasant. A police officer should not be assaulted, and malicious damage is to be deplored. But why remove bail? The alleged offender should be taken before a magistrate and dealt with on his/her merits. That will include considering the likelihood of reoffending.

We have now, in NSW, a government who considers that the judiciary gets the law wrong, and the police get it right. That is a step towards removing the need for a judicial system. I'm not saying that we will end up at that point, but all journeys start with a beginning.

On 1 September the Sydney Morning Herald reported comments by the new Police Commissioner for NSW:

New NSW Police Commissioner Andrew Scipione has an "ideas blueprint" to change the force.

Mr Scipione assumes the top job on Saturday following the retirement of Ken Moroney.

The 49-year-old Mr Scipione has targeted bail rules that allow people to get away with committing crimes while on bail, News Ltd reports.

"Bail is one of the key issues for me. Bail and warrants," Mr Scipione said.

The next day (2 September 2007) the Sydney Morning Herald reported:

NSW Premier Morris Iemma says a review of bail laws to crack down on repeat offenders is a timely move.

NSW Attorney-General John Hatzistergos has launched a comprehensive review of the state's bail laws to address police concerns over the release of repeat offenders.

Among proposed changes being considered is granting the police powers to challenge bail determinations in a higher court, and allowing them to hold suspects for three days while seeking a review.

Currently such powers extend only to charges of murder or child sex offences.

These reports strongly support the argument that the government and police collectively consider that the courts get it wrong and the police get it right.

Where could this lead? It could result in a system where there is no or limited judicial review of bail, and no accountability by the police for their decisions. We can picture Scipione saying "we don't need no stinking courts for bail."

(I imagine that some of the impetus for all this is a recent case where a man was given bail after being charged with throwing a rock -which left a woman in a coma. I imagine he was given bail because he was not a flight risk - the magistrate considered that he would turn up to his trial. If that is the case, then bail was properly granted. He should not be imprisoned prior to trial simply because a woman was grievously injured - he hasn't been found guilty of the offence. However, if he is found guilty he will no doubt be imprisoned, and I will be glad.)

Again, I say these are early, faltering steps only down a slippery slope - but in a society where we see overreaction by authorities on many levels (pointy car keys are fine on an aeroplane, but not nail files) we will continue to see poor law being justified by the exceptions.