These are important questions that go to how safe we feel in our community and how safe we actually are.

You will recall earlier this year Mr Dimitrious Gargasoulas – a serious offender, who was on bail in Victoria – killed several pedestrians in Melbourne’s CBD with his car. Victorians have been assured that they can now feel more secure as the government has tightened the Bail Act 1977 (the Act) and bail processes and is to invest more resources to avoid another Bourke Street Tragedy.

Following a review of the bail system, the Victorian Parliament has amended the Act by passing the Bail Amendment (Stage One) Bill 2017, which was assented to on 27 June 2017.

Overhaul of Victorian bail system

Earlier this year, Victorian Premier Daniel Andrews said a number of proposed reforms would make it harder for people accused of serious crimes to be released on bail as part of a complete overhaul of the state’s current bail system. He also said community safety would be given a much higher priority.

But surely the question still needs to be asked: why did it take the shocking deaths of innocent people before the Victorian government acted to give community safety “a much higher priority” over the interests of serious offenders?

It might seem to most of us that what is being acknowledged here by the Victorian government is that it has allowed, to this point, the courts and bail justices to subjugate community interest in the balancing act of community safety versus a ‘presumption in favour of bail’ (or ‘entitlement’ to bail), which arises out of the presumption of innocence.

It is certainly not an ideal state of affairs when judicial officers and bail justices have to be ‘reminded’, by amendment to the Bail Act 1977, to place a higher priority on community safety when making bail decisions.

Surely, even under the previous legislation, community interest should always have had paramountcy?

However, even with the recent amendments to the Act, bail justices and courts will continue to be free to interpret provisions such as ‘compelling reason’ and ‘exceptional circumstances’ as they see fit.

The ‘reminder’ to bail decision-makers in Victoria’s new legislation to put community interest first is, to say the very least, weak.

These reforms flow from the government’s response to a Bail Review following the Bourke Street attack in January this year which was conducted by the former Director of Public Prosecutions and Supreme Court Justice, Mr Paul Coghlan QC. It considered seven questions, which focused on legislative and practical reforms to manage risk and maximise community safety. Mr Coghlan provided the Victorian government with two separate reports. The first report was released on 3 April 2017. The second report was later released on 1 May 2017, making 37 recommendations in total.

First report

In the first report, Mr Coghlan observed that the provisions of the Bail Act 1977 (‘Bail Act’) are ‘very strict’ and that no major overhaul of the system was required. He noted that a general presumption for bail should operate, subject to the reverse onus and unacceptable risk tests. Mr Coughlan stated that considering the Bourke Street Tragedy:

if bail had been refused then, these offences might not have occurred.”

Key recommendations from the first report include:

· a purposes section in the Bail Act 1977 and guiding principles. This would be to ensure that, in making decisions to grant or refuse bail, they are made in the context of policy considerations, which strike a balance between community safety and the presumption of innocence (Recommendation 1)

· section 4 be tightened, making it harder to grant bail for accused individuals (Recommendation 2)

· the unacceptable risk test be amended, so that bail must be refused in all cases, if the prosecution (police) satisfies the bail decision maker (magistrate) that the accused would endanger the safety or welfare of any person, commit an offence, interfere with witnesses, obstruct the course of justice or fail to appear in court to answer to bail (Recommendation 3)

· the ‘show cause’ test be renamed to ‘show good reason’ (Recommendation 4)

· section 4 of the Bail Act 1977, in applying unacceptable risk, exceptional circumstance, and show good reason tests, the bail decision maker must take into account all the relevant circumstances including but not limited to criminal history, compliance with previous grants of bail and the seriousness and nature of the alleged offence (Recommendation 5)

· any accused charged with a serious offence which is alleged to have been committed while on bail must be refused bail, unless they show good reason for bail to be granted (Recommendation 6)

· offences that place an accused in the exceptional circumstances category or show good reason test be listed in Schedules 1 and 2 of the Bail Act 1977 (Recommendation 8); and offences added to Schedule 1 for the exceptional circumstances test, including aggravated home invasion (Recommendation 9)

· offences added to Schedule 2 regarding the ‘show good reason test’ including manslaughter, child homicide, armed robbery, threats to kill and rape (Recommendation 10)

· bail decisions to be delayed for intoxicated offenders (Recommendation 11)

· only a magistrate or judge may grant bail to an accused in the exceptional circumstances category (Recommendation 14); and

· further review of the role of bail justices be conducted, and pending that review, the retention of the bail justice system (Recommendation 18).

Second report

The second report encompassed other complex matters such as the administrative side of reforms.

Key recommendations from the second report include:

· the Court Integrated Services Program (CISP) receive further resources to allow it to provide more services around the state (Recommendation 27). The CISP provides support to accused persons and access to services and support aimed at reducing reoffending

· The Honorary Justice Office consider specialised training for bail justices on children and youth issues, Aboriginality, family violence, mental illness and cognitive disability, homelessness and substance dependence (Recommendation 28)

· a new Bail & Remand Court be established at the Magistrates’ Court. This would replace the current Night Court and Weekend Court and would sit in two courts, in two shifts from 9am-10pm and would cover the entire state.

· if the new Court is established, all headquarter police stations be equipped with audio visual links to enable swift bail hearings with an accused in custody by the Bail & Remand Court (Recommendation 29)

· once the Bail & Remand Court is fully operational, senior police members would be able to remand accused adults overnight, and bail justices be retained for matters such as out of hours bail applications for children and vulnerable adults (Recommendation 29)

· Bail Act 1977 be comprehensively overhauled and rewritten to enhance its structure, readability and consistency (Recommendation 37)

Victorian government’s response to the Coghlan review

The Victorian government indicated at the time that it would adopt each recommendation in the first report and it appears to have implemented many with the passage of the Bail Amendment (Stage One) Act 2017.

However, further consultation with relevant agencies and community groups on longer-term recommendations outlined in the second report are to be undertaken before any further changes are implemented. It is understood a second Bill will be introduced later this year into the Victorian Parliament, which will address the more complex matters and recommendations of the second Coghlan report. The Premier, Daniel Andrews, said that the recommendations in the second report affected the whole bail system and required careful consideration.

A band-aid solution

Police Association Secretary, Wayne Gatt, welcomed the move towards simpler new laws, while the Victims of Crime Commissioner Greg Davies has said that the proposed reforms were “certainly an improvement.”

However, Opposition Leader Matthew Guy has slammed the proposed changes, saying that they “appear simply cosmetic” and are “too small and too weak.” Mr Guy believes the system needs a cultural overhaul which would elicit fear within offenders.

In our view, while the implementation of Mr Coghlan’s recommendations is a positive step forward, the reforms to this point just seem to be a band-aid solution.

Retention of bail justices and limiting the scope of their role may continue to ease the burden on courts and police but it does also mean that mistakes will inevitably occur. If bail justices are to be retained they should be legally qualified and undertake far more rigorous training before being permitted to make a decision about whether to grant bail.

Serious offenders will no doubt continue to slip between the cracks and the legislative changes will not deter offenders from committing offences whilst on bail.

Conclusion

Not much has been achieved to allay community concerns that the bail system remains heavily skewed in favour of serious offenders. Law reform is never an easy task, but far greater effort and education are needed to strike a proper balance between the ‘entitlement’ to bail and maximising community safety.

Only time will tell if these reforms are anywhere near effective enough to keep Victorians safe.

Further Information

Bail Review reports and the Victorian government’s response are available here.

What do you think? Are the proposed recommended reforms to the bail system sufficient to protect Victorians from serious offenders? Let us know in the comments!

Personal safety is a fundamental human right.

But how safe can we feel when potentially dangerous criminals are wrongly released on bail? The increasing frequency of terrorist-inspired attacks leaves many of us fearing that at any given moment a criminal who should, by most people’s standards, be in jail could be roaming the streets and ready to harm innocent people.

The recent attacks in Stockholm, Sweden and Westminster Bridge, London – where cars were used as weapons to mow down pedestrians – throws into sharp focus our ‘belief’ versus the ‘actuality’ that we all have the right not only to feel safe but also to be safe.

While Victoria’s bail system has been in need of a major shake-up for quite some time, it was the Bourke Street Tragedy in January this year that was the trigger for the Victorian Government to spring into action and announce immediate – if somewhat inadequate – reforms.

Bourke Street tragedy

On 20 January 2017, Dimitrious Gargasoulas had been pursued by police driving a stolen vehicle. Gargasoulas allegedly did burnouts at the Flinders Street intersection before speeding down the Bourke Street precinct where he began deliberately driving into pedestrians. It was not until he had driven towards the end of Bourke Street that he was shot by police. Six people were killed, including a three-month-old baby. Earlier that day, Gargasoulas had stabbed his own brother.

What makes this incident even more appalling is the fact that it was preventable.

Only six days prior to his rampage through the Bourke Street precinct, Gargasoulas had been released on bail. This was granted by an after-hours Bail Justice. Like Man Haron Monis – the person responsible for the Lindt Cafe siege in Sydney in 2014 – Gargasoulas had several prior convictions, including a rape conviction.

Despite police opposition to releasing Dimitrios on bail, the Bail Justice disagreed and released him.

His continued remand in custody would have saved six lives, numerous injuries and incalculable community trauma.

Bail Justices are not equipped to make decisions affecting community safety

Bail Justices have been proven to be grossly ill-equipped to make important decisions impacting community safety. The wrongful release of Dimitrious Gargasoulas is a perfect example.

Disturbingly, Bail Justices are volunteers who possess no legal qualifications. The only requirements are: to be over 18 years of age, to be an Australian citizen, to not insolvent, to complete a Justice of the Peace course and a Bail Justice Training program.

What most members of the public don’t realise is that almost anyone on the street can meet the requirements to become a Bail Justice. Under the Victorian bail system, volunteers with no prior legal experience and minimal training are making critical assessments that impact our day-to-day safety.

Unlike Magistrates who have legal qualifications and many years of legal training and experience in criminal matters, Bail Justices simply do not have the necessary skills and experience required to make critical evaluations about whether to release an accused person on bail.

Magistrates are experienced at making complex risk assessments and making difficult but sound determinations, weighing the full range of factors, that properly inform a correct bail determination. These might include prior convictions, AVO histories and mental health histories. Magistrates understand and appreciate the nuances of the law, that it requires individual analysis and assessment on a case-by-case basis, not only taking into consideration all possible immediate factors but also forecasting the future and possible serious consequences associated with granting bail.

Bail Justices, on the other hand, can be predisposed to operating on the presumption of granting bail in circumstances where they rely mostly on police submissions and what an accused tells them in court, without a full picture of the accused’s background and potential to be a risk to the community. Some commentators have observed that Bail Justices do not fully understand how the Bail Act 1977 operates.

The decision about whether to release someone on bail is an important one with serious implications – it is not an administrative tick and flick situation that can be left to someone with no legal experience.

Another important, but somewhat overlooked, factor influencing the grant of bail is that remand centres and prisons in Victoria are at near capacity, meaning that potentially violent criminals cannot be accommodated and are released back onto the streets.

Blame does not lie with Bail Justices themselves but with a justice system that has negligently placed unqualified volunteers at the centre of decisions that have the potential to seriously compromise community safety.

As we have seen, a system that risks permitting bail to even one accused person, where that person poses a significant risk to public safety (as with the Bourke Street tragedy), in the hands of an unqualified volunteer is a system that is broken.

Need for immediate reform

The Bourke Street Tragedy shone a spotlight on a gaping chasm of deficiencies in the Victorian bail system which dates back to the 1980s.

In response to the incident, Daniel Andrews, Premier of Victoria, immediately announced that a ‘Night Court’ would be established so that qualified Magistrates would hear bail applications for serious and violent offences after hours and over weekends. The Night Court commenced on 27 January.

The Government next announced that there would be a comprehensive review into Victoria’s bail system. The review is being conducted by the Hon Paul Coghlan QC. Mr Coghlan provided his initial advice on legislative reform to the Victorian Government on 3 April 2017.

Any other relevant matters will be reported by 1 May 2017.

The review considered seven specific questions, focussing on legislative and practical reforms “to manage risk and maximise community safety”.

The review’s terms of reference:

• how the necessary balance between protection of the community and the presumption of innocence should be best reflected in section 4 of the Bail Act 1977

• appropriateness of the current tests of exceptional circumstances, show cause and unacceptable risk, and an examination of the offences to which those tests apply

• whether additional offences should be added to the list of offences which place an accused person into the show cause or exceptional circumstances categories

• the way in which other relevant circumstances (for example, a history of prior offending or offences committed while on bail), are considered in assessing whether an accused person should be granted bail

• whether information available for consideration by decision-makers in the bail system is sufficient to properly consider and assess the risks that are posed by accused persons, including those with complex risks, needs and case histories

• the conduct of bail applications out of hours including the role of Bail Justices; and

• whether, in relation to out of hours applications, different rules are required for different types of offences.

Where to from here?

The Bourke Street Tragedy caused a considerable amount of grief, trauma and eroded public confidence in the justice system.

Law reform is never an easy task. It should be conducted in a way that addresses community expectations with speed, diligence and skill to achieve justice and, most importantly, to ensure public safety. People expect that governments will protect them. Since the Bourke Street tragedy, many Australians have questioned “how could something as shocking as this happen in broad daylight in Melbourne’s CBD?” It is, therefore, critical that community protection and victim protection align with community expectations.

The introduction of a Night Court is nowhere near a complete solution to reforming the Victorian bail system, but it is a step forward. Any changes should require bail decisions to always take account of and reflect the paramountcy of community safety.

If this means that serious offenders’ or recidivist offenders’ rights are subjugated to those of innocent members of the community, few Australians would protest this outcome.

In the light of national security issues, it is also important that the presumption towards bail is reversed, especially where the judicial system has proven itself to be deficient in its ability to remove serious threats to public safety in the streets.

Currently, no apparent scrutiny or accountability exists for the outcomes of decisions made by magistrates or Bail Justices, even where those decisions cause a serious threat to the community, allow an accused person to re-offend, harm others or cause death.

Urgent implementation of Justice Coghlan’s recommendations for legislative change is required before another serious offender is released on bail and is given the freedom and opportunity to commit another serious crime.

Further Information

For a BucketOrange breakdown of how the current Victorian bail system operates, click here.

What do you think? Should Bail Justices be in a position to make important decisions that influence community safety? Let us know in the comments!