Is community safety too often outweighed by the presumption of innocence for serious repeat offenders in bail decisions? Do bail decision-makers lose sight of the proper balance that needs to be achieved and too readily grant bail, even for repeat serious offenders? Have governments paid sufficient attention to community concerns about repeat offenders committing serious offences while on bail or parole?
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.
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.
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)
· 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
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.
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.
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!