NSW Law Society and Bar Association tell Police Minister to Stop Spreading Misinformation about Bail

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By Paul Gregoire and Ugur Nedim

Right now, those profiteering from the NSW prison boom must be rubbing their hands together with glee, as both major parties have stated that a number of recent bail decisions are reason to consider strengthening state bail laws, despite 2014 reforms having flooded facilities with remandees.

The recent spat over these laws has developed due to six out of the thousands of bail decisions recently made. The contentious handful of decisions included the release on bail of millionaire restaurateur and alleged drug trafficker Mostafa Baluch, who subsequently cut off his electronic ankle monitor and went on the run.

Other contentious decisions involved a Finks motorcycle club member caught with a handgun being released on bail, as well as separate September raids having seen two men charged with firearms possession offences both released on bail, with one later being shot dead in his driveway.

These decisions led NSW shadow police minister Walt Secord to proclaim that criminals are “laughing at the revolving door of bail in NSW”, while state police minister David Elliot said, “it appears something is not working and the community has the right to be furious, as I am”.

However, on Friday, two key legal bodies – the NSW Bar Association and the Law Society of NSW – released a joint statement targeting the police minister’s criticisms, asserting that they’re “unjustified” and only serve to undermine public confidence in the judicial system.

A bipartisan approach

Elliot was reported as saying early last week that he’d be querying “how some members of the judiciary are interpreting their role” with the attorney general. He further claimed that magistrates had been disregarding community safety and he encouraged the public to be upset about it.

While Secord said, “Cops are spitting chips”. And the shadow minister went on to explain that NSW Labor is working on a reform package that would see state bail laws – which are already commonly understood to be draconian in reach – tightened even further.

Concerns around the recent bail decisions have also resulted in NSW attorney general Mark Speakman announcing mid-last week that he’s convened a high level group of police officials, lawyers and bureaucrats to scrutinize the recent contentious bail decisions.

The state’s chief lawmaker requested that those in the group consider any legislative changes or operational reforms that are needed to prevent any light bail decisions, such as that which saw Baluch released back into the community.

The group charged with determining whether tougher bail laws are needed includes representatives from the Department of Communities and Justice, the NSW Police Force, the Aboriginal Legal Centre, the Office of the Director of Public Prosecutions and the NSW Legal Aid Commission.

An increase in remandees

Prisoner numbers in NSW have been on a steep increase over the past two decades, whilst at the same time crime rates have been on a dramatic decline.

And while numbers on the inside have dropped recently due to the impact of the COVID-19 lockdowns on dramatically decline in crime, the numbers remain far higher than a decade ago.

The latest Bureau of Crime Statistics and Research figures reveal that of the 12,254 inmates in NSW facilities in September this year, 4,578 adult prisoners, or 37 percent of them, were on remand, which means they either hadn’t been found guilty, or were yet to be sentenced.

Bail laws

Bail laws introduced into state parliament in 1978 had assumed a presumption for bail for all imprisonable offences.

But a high-profile case resulted in a presumption against bail for armed robbery being included, and three decades later, numerous such amendments had made the legislation unworkable.

This saw the passing of the Bail Act 2013 (NSW). And just months after its enactment, a number of amendments were made to tighten the new laws. These 2014 changes included a stipulation for a list of offences, whereby bail is refused unless the accused can “show cause” for it not to be.

A 2018 BOCSAR report on the effect of the show cause provisions that took effect in 2015 found they had “increased the probability that the average defendant is refused bail by the courts by about 11 percent”. And over the two year period, this had seen an additional 1,500 bail refusals.

Figures for late 2012 reveal that prior to the introduction of the laws, 28 percent of inmates were on remand, while a 2000 BOCSAR report shows that the trend in remanding prisoners had been on the increase since 1997, with a key reason involving police and magistrates being less willing to grant it.

A mid-2020 BOCSAR report found that in the early days of the pandemic, magistrates were less likely to remand people due to “policies put in place to limit the spread of COVID-19”. And with recent COVID outbreaks in state facilities, it might be assumed there has been a tendency towards bail.

Legal fraternity bites back

The NSW Bar Association and the Law Society of NSW released a 12 November joint statement, in which they basically told the NSW police minister to back off, as his criticisms of bail decisions “have the potential to unnecessarily undermine public confidence in the justice system”.

NSW Law Society president Juliana Warner explained that the NSW Bail Act “sets out a legal framework” that allows judicial officers to decide on whether to grant bail based on likelihood to abscond, the potential to commit another offence, as well as victim and community safety concerns.

“Judicial officers are required to determine matters in good faith,” Warner continued. “It is important that judicial officers are not placed under pressure or be perceived to be placed under pressure as to how matters should be determined by ministers of the Crown.”

While Michael McHugh SC, president of the NSW Bar Association, added that the NSW Local Court – where bail is determined – is the busiest such court in the country. And Local Court magistrates “make thousands of important decisions every year” that the NSW government should support.

“Judicial officers can only make decisions based on the evidence before them at the time, and not with the benefit of hindsight,” McHugh made clear. “Processes exist to ensure that all judicial decisions are subject to proper scrutiny.”

“Personal attacks on judicial officers applying the law in good faith are inappropriate and undermine the rule of law,” the barrister concluded.

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