Three major criminal law amendments; three reductions in an accused’s former rights.

Significant new criminal law amendments made by the NSW Government in 2007 have upset the finely struck balance between community interest and a defendant’s rights that underpins our criminal justice system. The changes flow largely from pre-election promises made during the now all-too-familiar law-and-order auctions that see both the major political parties vying to outdo each with a bristling tough-on-crime posture. Politicians persevere in this stance despite the demonstrated failure of such laws to reduce the rate of major crime and with scant concern for personal rights and liberties.

One shot at bail – The Bail Amendment Act 2007

Just before Christmas 2007, arguably the most radical amendment to the Bail Act 1978 was introduced in NSW. The amendment irrevocably changes the centuries–old principle that a citizen charged with a criminal offence has an unlimited right to ask a court to be granted liberty pending the hearing of their case. This right has been part and parcel of the presumption of innocence, which is one the foundation stones of our criminal justice system.

Under the amendment, a court is now required to refuse to entertain an application for bail by a person accused of an offence, if an application by the person in relation to that bail has already being made and dealt with by a court, unless:

  • the person was not legally represented when the previous application was dealt with, and the person now has legal representation; or
  • the court is satisfied that new facts or circumstances have arisen since the previous application that justify the making of another application.

The new law also prevents further applications being made to a court by lawyers for an accused person, except where the application would be permitted under the above two conditions.

Lawyers will now most likely advise defendants that they should delay making a bail application until they can make the best application possible, given that their right to unlimited bail applications has been removed. Depending on the circumstances of each case, this may mean that defendants could remain in custody anywhere from several days up to several months before an application is made.

No guidance to definitions used in the amendment ¿ prejudicial to defendants

Despite the fact that the Bail Act 1978 deals with citizens’ most fundamental freedoms, Parliament has not defined what will constitute “new facts or circumstances justifying another application”. As a result, the prosecution, which up until now has had no right to be heard on a defendant’s entitlement to make an application for bail (as opposed to whether bail should be granted or refused) will have an opportunity to argue that what is being submitted by a defendant does not amount to “new facts or circumstances”, or does not “justify the making of another application”.

Until there is some binding judicial authority interpreting the phrases, it is possible that the discretion given to magistrates could be exercised in an inconsistent manner, prejudicing the rights of defendants. For example, it is conceivable that while one magistrate may regard the fact that a defendant has spent an extra week in custody since the first bail application, as a “new fact or circumstance justifying another application”; another may adopt a very narrow interpretation, and regard the expression as only relating to whether there is any “new fact or circumstance” in the Crown case that would justify a second application. It is easy to see how a multitude of other potential “new facts and circumstances” will give rise to the same types of interpretative disputes, to the detriment of defendant’s right to be on bail.

The inevitable consequence will be a dramatic increase in the number of remand prisoners, because:

  • defendants will be advised not to make an immediate application for bail, thereby being remanded in custody while the best possible first and only application is prepared; and
  • more defendants will be refused the right altogether to make a second application for bail, keeping them in custody until their hearing.

We are also likely to see defendants being advised to make an unrepresented immediate first application for bail, leaving the option of a second application to be made with legal representation at a later date.

Further presumptions against bail introduced

The Bail Amendment Act 2007 also amends the Bail Act 1978 to create a presumption against bail for certain firearm offences. This is in keeping with the gradual introduction by the NSW Government of presumptions against bail for offences such as drug importation, repeat property offences and riots, as well as the introduction of the more demanding “exceptional circumstances tests” for murder and serious personal violence offences.

The Legislation Review Committee, whose task it is to report to both Houses of Parliament whether a bill trespasses unduly on personal rights and freedoms, was highly critical of the amendments, observing “that all persons who have been arrested and charged have the right to the presumption of innocence. This includes the right to be treated as though innocent.” The committee was also critical of the fact that the legislation is retrospective, as it deems bail applications made before the commencement of the amending legislation as first applications. This will have an immediate impact on all remand prisoners in NSW, despite their not being made aware of the commencement of the legislation.

In his second reading speech introducing the Bill, the Hon John Hatzistergos (Attorney General and Minister for Justice) ignored this criticism and instead focused Parliament’s attention on the fact that “NSW now has the toughest bail laws in Australia” and that “the number of remand prisoners has increased by 20 per cent in the last three years alone and new jails are being built to accommodate the increase”.

The NSW Government seems to have an ambition to make it as difficult as possible for defendants to be granted bail, and to achieve this goal is prepared to remove long–held and cherished freedoms that have been protecting defendant’s rights for centuries.

Almost 30 years after it was introduced, it is almost impossible to believe that in its original form, the Bail Act 1978 was quite liberal and generous in its scope to allow accused persons to be at liberty.

  • The significant and ongoing amendments to the NSW Bail Act have been identified as a major reason for the increase of remand prisoners. Following the government’s last significant amendment, Bail Amendments (Repeat Offenders) Act 2002, the bail refusal rates rose by:
  • more than 10 per cent for defendants with prior convictions;
  • more than seven per cent for defendants appearing for an indictable offence who have an indictable prior; and
  • more than 15 per cent for defendants who have previously failed to appear in court in accordance with their bail undertaking.

Remanding a person in custody is a serious deprivation of liberty. Inmates awaiting trial theoretically enjoy a presumption of innocence, yet may remain incarcerated for several months, sometimes up to 18 months, before they go to court. On remand, inmates are deprived of any access to rehabilitation program, are often in overcrowded maximum security gaols, are disadvantaged in the preparation of their defence, lose family and community ties, including employment, and are at risk of being seriously assaulted.

Despite the Judicial Commission demonstrating in 2001 that 56 per cent of prisoners held in remand are eventually discharged without a custodial sentence, the NSW Government seems determined to have more defendants removed from the community. In November 2002, the Judicial Commission observed that “refusal of bail not only seriously infringes an individual’s basic liberty, but also has broader ramifications in the subsequent criminal processing of that individual, such as lack of access to legal and rehabilitation resources”. The NSW Government has completely ignored the legitimate concerns raised by the Judicial Commission and the Legislation Review Committee. In doing so, it has fundamentally altered the balance of the criminal justice system at the expense of citizen’s rights.

Do tough bail laws reduce crime?

The Bureau of Crime Statistics and Research published the results of its pilot study of 189 defendants in the Blacktown and Newcastle Local Courts only months before the new bail amendment was introduced. The study showed that

  • 55 per cent of defendants reported one or more psychiatric disorders;
  • three–quarters of those met the criteria for dependent or disordered substance use;
  • nearly one in three had no education or vocational training beyond year 10 at school;
  • fifty–one per cent had reported having received at some stage in their lives a blow to the head that caused a dazed or confused state;
  • forty–five per cent reported at some stage in their life receiving a blow that caused loss of consciousness;
  • sixty–three per cent were on welfare; and
  • fifteen per cent reported having a gambling problem.

The new amendment to the Bail Act 1978 will not address any of these well–recognised and long–standing social problems that contribute to criminal behaviour. On the contrary, it will add these marginalised individuals into the swelling ranks of the NSW jail remand population, denying them the rehabilitation and professional supervision they require.

Is there a sound policy behind the new bail laws?

During his Second Reading Speech, the NSW Attorney General vaguely explained the reason for the amendments by arguing that “the changes will also prevent what is known as `magistrate shopping’ ¿ the process of going from magistrate to magistrate, or judge to judge, with the hope of obtaining different outcomes”.

Absolutely no evidence was offered to support such a claim. In NSW, criminal matters remain within Local Court jurisdictional boundaries, where often one magistrate sits for consecutive months if not consecutive years. The suggestion that defendants magistrate shop is as inaccurate as it is offensive to those lawyers tasked with protecting the rights of defendant’s. Even more vague was the Premier Mr Morris Iemma’s assertion that the amendments were designed to assist victims of crime by reducing the number of bail applications, as “the victims of crime are forced to relive the events leading up to the arrest of the defendants and endure the continued public attention that these crimes attract”. This is an inaccurate characterisation of what happens daily in NSW Local Court bail applications. Victims are never required to attend, and the standard evidence that is adduced to the magistrate is by way of a police fact sheet outlining the prosecution case.

Given the policy vacuum within which these amendments have been passed, one can only conclude that they are ill–considered responses to political pressure to be seen as the toughest party on `law and order’.

The right to know the case against you under threat

Criminal Procedure Amendment (Local Court Process Reforms) Act 2007

It has always been a principle of our criminal justice system that the prosecution bears the legal burden of proof to the standard of `beyond reasonable doubt’. In practical terms this has meant that apart from some minor offences, the accused was entitled to be served with a brief of evidence containing the material relied upon by the prosecution, in order to properly meet the case against them.

With the passing of the Criminal Procedure Amendment (Local Court Process Reforms) Act 2007, this cardinal principle is radically altered by removing the requirement that a brief of evidence in proceedings for indictable offences (triable summarily) be served before the time fixed for electing whether the offence is to be tried summarily by a magistrate or on indictment by a jury. This means that a defendant charged with a serious criminal offence carrying a significant maximum term of imprisonment will no longer be entitled to know what the evidence against them is before they are required to enter a plea to the charge. Before being allowed to even see the evidence against them, defendants will now be required to make decisions which could potentially mean the difference between serving a maximum of two years imprisonment or a maximum of 14 years.

The Legislation Review Committee noted that the government’s argument that this amendment will affect less than one per cent of defendants does not alleviate the committee’s concerns about the “impact on procedural fairness” created by the amendment.

The amendment also expands (on a 12–month trial basis) the prescribed list of proceedings for which a brief of evidence does not need to be served, further taking away a defendant’s rights to know the complete case against them.

More front line police less procedural fairness

In her second reading speech, the Hon Penny Sharpe, made it abundantly clear that the Bill came about as a result of consultation with the Attorney General’s Department, the Premier’s Delivery Unit and the NSW Police Force. However, there appears to have been no consultation with the stakeholders in the criminal justice system, whose role it is to protect the rights of defendants. The purpose of the Bill, Sharpe said, is to help “the reduction of crime, particularly violent crime” and this is to be achieved by “reducing the bureaucratic burden on police to free up time for front–line activities”.

The NSW Government has a legitimate interest in reducing the paperwork load for police, but at what cost? The Parliamentary Review Committee has concluded that the amendment trespasses on personal rights and liberties by depriving a defendant of the right to know the evidence against them and the case they have to meet. This is clearly too high a cost.

Additionally, the Law Society of NSW voiced concerns that, at a practical level, it would be inappropriate for a lawyer to advise a defendant to plead guilty without seeing the relevant evidence. This would tend to suggest that the Act will have the opposite effect to that intended, and will increase police paperwork due to an increase in the number of not–guilty pleas made in an attempt to ensure that a defendant’s rights are protected.

The NSW Government’s desire to implement a tough law and order policy, which focuses more on front–line police numbers than on procedural fairness, has led to basic principles of justice being brushed to one side.

Special police emergency powers now permanent – Law Enforcement and Other Legislation Amendment Act 2007

Following the Cronulla riots in December 2005, NSW police were given extraordinary new powers designed to allow them to prevent and control large–scale public disorders. They enabled police to close streets with roadblocks, stop and search cars, and close pubs. The legislation also increased penalties for assaults during such disorders, and imposed a presumption against bail for any offences committed.

Section 59A of the Crimes Act 1900 provides a maximum penalty of five years jail instead of the general penalty of two years for assault during a large–scale disorder in situations where no actual bodily harm is caused, and of seven years, instead of a general penalty of five years, where actual bodily harm is caused.

At the time the laws were passed, the NSW Government maintained that the powers would remain in force only for two years, and would expire on 15 December 2007.

Despite a review by the Ombudsman finding that the powers have rarely been used, the NSW Government has legislated to make them permanent. The Law Enforcement and Other Legislation Amendment Act 2007 also gives additional powers to the police to issue directions for a person in a group of three or more seriously intoxicated persons in a public place to leave the place and not return for a period that does not exceed six hours.

The Legislation Review Committee found that the extension of the above powers amounted to a trespass on personal rights and liberties and that the punishment for offences committed during such disorders was excessive. The committee also found that the presumption against bail was excessive.

The ongoing legitimacy of the criminal justice system is derived from the strict observance of some basic principles of fairness which include:

  • the presumption of innocence;
  • the right to make a bail application; and
  • the right to know the case against you.

By implementing its 2007 pre–election promises, the NSW Government continues to undermine these principles at the expense of basic citizen rights.

This article originally appeared in the Law Society Journal