Page 5197 - Week 16 - Thursday, 28 November 1991
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person's arrest and final conviction or acquittal. Keeping an unconvicted person in custody for extended periods is inconsistent with the presumption of innocence, particularly if the person is eventually acquitted.
Bail is a mechanism to allow a person to go free at times when he or she is not actually required to be in court. Being in custody seriously prejudices the accused. The report published in 1976 of the Bail Review Committee of New South Wales identified the following factors: An accused who is held in custody is more likely to plead guilty; more likely to be convicted if he or she pleads not guilty; and more likely to be sentenced to a gaol term if convicted.
Also, while in custody, an accused is not earning any income and may even be sacked if remand lasts more than a few days. This will probably mean that his or her family will have to go on social security benefits and may be unable to meet loan or mortgage repayments. This outcome is obviously unacceptable for a person who is unconvicted and therefore presumed innocent.
More importantly, it is difficult, if not impossible, to prepare an adequate defence while in custody. To prepare a defence, you need free access to your lawyer and free movement to find witnesses and prepare evidence. The rules and regulations which are necessary for the effective running of a remand centre obviously impede this.
On the other hand, Mr Speaker, the community has a legitimate expectation that an accused person will stand trial and that the course of justice will not be obstructed. An accused person may justifiably be held in custody pending trial if he or she is likely to abscond or interfere with evidence or intimidate witnesses.
Under the present law in this Territory, bail is a type of security under which the accused usually undertakes to appear in court under pain of forfeiting a specified sum of money. The accused normally has to provide a guarantor to the undertaking as well, who also stands to forfeit a sum of money if the accused fails to appear in court on the appointed day. This person is called a surety. Originally, the surety was a kind of personal gaoler; but that function has long been extinct, although the surety's right to arrest the accused without warrant remains. The Bill will abolish that right, because it is no longer appropriate in today's society, and will confer substitute powers on the police.
Bail may be granted by the Supreme Court, the Magistrates Court or, in certain circumstances, a senior police officer. The current state of the law of bail in this Territory is unsatisfactory. First, it is difficult to determine what the applicable law is because it is scattered over so many sources. In particular, the police
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