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.
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
During business hours, bail applications for serious offences are heard by a Judge in the Supreme or County Court. For less serious offences, applications are heard in the Magistrate’s court. However, when a person is kept in police custody after hours, or on weekends, a Bail Justice decides whether to grant or refuse bail.
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
- 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.
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!