By Paul Gregoire and Ugur Nedim
The Bureau of Crime Statistics and Research (BOCSAR) has released a number of reports in recent years explaining some of the reasons behind the explosion of people being held on remand in New South Wales.
These reasons may be seen as primarily related to the systematic strengthening of bail laws, whereby requirements to ‘show cause’ as to why bail should be granted have been introduced, those provisions have been extended to a broader range of offences and situations, restrictions have been placed on achieving bail when a person who is sentenced to imprisonment appeals to a higher court, and those charged with certain domestic violence offences also face a higher bail threshold.
Recently, the BOCSAR has published a report which has found that another reason for the increase is discrepancies between bail decisions made by police and the courts.
What is remand?
Remand is when a person charged with a criminal offence is held in custody pending the determination of a ‘release application’, which is also known as a bail application.
If the bail application is successful, and pre-release condition such as depositing a security are met, then the person will be released into the community – normally on bail conditions – until their case proceeds through the courts. The exception is where bail is revoked by way of a detention application.
If the bail application is unsuccessful, the person will be held in detention on remand until their case is finalised – whether by way of the charges being withdrawn or dismissed. The exception is where a subsequent bail application is successful.
Remand population skyrockets
Between March 2013 and March 2024, the adult inmate population on remand had risen by 44 percent, or up from 3,651 inmates last decade to 5,452 in March this year.
The NSW criminal justice system is supposed to deliver effective measures to punish crime and protect the community from it.
For a system that’s supposed to deliver just outcomes, however, bail is one of the most unfair measures when it comes remandees who ultimately aren’t convicted of a crime whilst doing time for it and once a person goes to prison, they’re more likely to return to it.
Bail is a legal agreement between an accused, who’s been arrested and has a future court appearance pending, and either police, the prosecution or the courts. If granted by a prosecutor, the police or a magistrate, bail or conditional release allows the accused to live in the community prior to a court hearing, usually under a set of conditions and at a stipulated address.
So, due to the unfair nature of remand, it’s hardly beneficial to have close to half the state’s adult prisoner population being on remand with unfinished cases, either yet to be unconvicted or yet to be sentenced. And despite the stark numbers of people being remanded in NSW, this state is no anomaly in regard to other states and territories, when locking up unconvicted people.
Released on 30 October, the BOCSAR report titled, Understanding bail decision-making: an observation and interview study, paints a grim picture of the way bail is operating in NSW, especially with the fact that taxpayers in this state are paying $1.6 million to detain the remandee population every day, which should be incentive to clean it up.
No end in sight
“Bail legislation aims to strike an appropriate balance between “future risk, on the one hand, and the presumption of innocence and the right of an accused person to be at liberty on the other,” the BOCSAR report explains.
“In NSW, the Bail Act 2013 (NSW) provides legislative guidance for structured decision-making by bail authorities… to decide whether an accused person remains in the community until their matter is heard in court or whether they are detained.”
Besides the massive cost to taxpayers that remanding approximately 5,400 people a day at a cost of $286.89 per person, another key factor warranting change relates to how bail decisions impact First Nations peoples. Indigenous peoples represent 32 percent of the remand population in this state and since March 2013, the number of these inmates has risen by 131 percent to 1,763 adults.
The legislated framework of bail laws in this state prioritises three outcomes: protecting the community, protecting victims and protecting trial integrity.
In terms of process, a NSW police custody manager decides whether to release an arrestee without bail, release them on bail with conditions or not, or to refuse bail.
Following this, if they are remanded, they must go before a NSW Local Court magistrate within 24 hours of the police decision, so bail determination can take place again with a magistrate, if the remandee applies for it.
Show cause requirement
The O’Farrell government conducted an overhaul of bail in 2013, with the passing of the Bail Act. But it then undertook a second major change the following year, when it passed the Bail Amendment Bill 2014, which established the show cause bail regime that entails those accused of certain serious offences having bail automatically refused unless they show cause for bail being granted.
Section 16B of the Bail Act contains the list of show cause offences, which include crimes carrying life imprisonment, sexual intercourse with a person under 16 by a person over 18, a serious personal violence offence, a serious domestic violence offence, abusive behaviour towards an intimate partner, as well as certain serious firearm offences and some relating to illicit substances.
BOCSAR explains that in regard to showing cause, the Bail Act “offers little guidance” on how to do it. And it then sets out that if a person isn’t charged with a show cause offence, or if they have been charged with a show cause offence and they successfully show cause for it, both sets of people then undertake the “unacceptable risk test”.
The unacceptable risk test applies to all offences. Bail authorities must assess whether the accused poses an unacceptable bail risk if released. These risks include failing to show up to court proceedings, having committed a serious crime, endangering the safety of victims, individuals or the community and interfering with witnesses or evidence.
Section 18 of the Bail Act lists the matters a bail authority considers when deciding on whether to apply bail, which includes criminal history, community ties, whether they’ve shown a pattern of compliance with previous bail conditions, and whether special vulnerability is warranted for consideration or indeed, Indigenous status, youth, a mental health issue or cognitive impairment.
“If an unacceptable risk… exists but can be mitigated by bail conditions, then the accused is to be granted conditional bail,” the BOCSAR researchers make certain. “If any identified risks cannot be mitigated by bail conditions, bail is to be refused.”
Desperately seeking conditional release
BOCSAR studied 252 first court bail hearings happening in the NSW police stations and NSW Local Courts over February to May last year. And 37 of the cases involved no bail application, and 18 of these matters were dealt with on first appearance, due to this lack of application.
Bail applications were, however, made in the remaining 197 matters, which then saw 74 individuals bail refused, 104 released on conditional bail, 6 matters resulted in the accused being released unconditionally and 13 involved bail not being dispensed as these cases were finalised during the same hearing.
Sixty two percent of the accused, who were refused bail by police initially, were subsequently released after applying for it in the Local Court.
The difference between both the police bail hearings and that of the court, is that the accused gets to argue their point in court, regarding why they should be bail released, why detention is not justified, as well as being able to demonstrate eligibility for bail.
So, while vulnerabilities were put for individuals being considered for remand, they were only ever accepted in a tiny number of decisions over the period of the study. “The lack of definition and guidance for decisionmakers on how vulnerabilities might affect risk and to what extent they should be considered, is a limitation of the bail legislation”.
“Coupled with this,” the report continues, “is the lack of specific education lawyers, judicial officers, and custody managers receive on the fundamental association between different types of vulnerabilities, offending, and approaches to justice, and the benefits of a rehabilitative opposed to punitive approach.”
Differences in approach
The report repeatedly contrasts how NSW police and the NSW Local Court arrives at their bail decisions, however it does add that both law enforcement and the judiciary prioritise the “seriousness of the index offence”, as well as any prior offending. Police are less inclined to consider the special vulnerabilities of the accused and more inclined to refuse bail over show cause offences.
There are three primary reasons for disparities between police and the courts. The first is that the accused gets to show cause to the courts, while more often than not the police aren’t interested. Secondly, bail conditions are often considered by magistrates, while the police don’t tend to make such an assessment. And lastly, police are stricter than the courts on bail.
Another key reason for the disparities is that unlike magistrates, the police have limited legal training. So, custody managers assessing whether to grant bail can’t interpret the Bail Act. And the legal representatives of the accused are able to take time to argue specific points in court bail hearings, whereas nothing of the sort happens at police hearings.
Dealing with remand
In terms of reducing unnecessary bail refusals, the BOCSAR researchers suggest the show cause offence list could be amended, clear guidelines should be given to police explaining decision-making, and the main issues with these differences of bail outcomes is that custody managers apply discretion when making a bail condition, even when offending is relatively minor.
BOCSAR also suggests that the discrepancies can be cleared up if bail specialists were appointed as custody managers and another recommendation of the report is that legal representation should be available to the accused at the point of a custody manager making a decision to refuse, in order to ensure all relevant details are taken into consideration and accessed.
The “paper clearly demonstrates the complexity of bail decision-making as well as the inconsistencies in how bail laws are applied in NSW,” the BOCSAR researchers said in concluding.
“While the accused’s offending profile and prior criminal history are highly influential in both police and court bail decisions, two out of every five defendants refused bail by police are subsequently released by the court,” the report adds.
