Page 2964 - Week 10 - Thursday, 15 September 1994
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Several refinements to the provisions on police bail are also proposed. One significant amendment will clarify the ability of police to grant bail when a person is arrested pursuant to a warrant. This could prevent a recurrence of the recent incident where the wrong person was held over a weekend. It was not thought appropriate for persons arrested under warrant to be granted police bail in all instances. After all, a warrant is an order from the court to bring the person before the court forthwith. The amendment therefore confines police bail on warrants to circumstances where it is not feasible to bring the person before the court immediately, say, for example, where the warrant is served on a weekend, where the court has not expressly prohibited bail and where the offence is minor, that is, punishable by a fine only or by imprisonment for two years or less.
Paragraph 13(1)(c) of the Bail Act gives the accused the right to communicate with a lawyer, interpreter or other suitable person. Subsection 13(4) allows police to waive those rights where there is a risk of an accomplice being alerted or evidence being destroyed. This waiver could be an important safeguard in the event of a sensitive police operation, but a loophole in section 16 renders this waiver only partially effective. Under section 16, if the police refuse bail, then the accused must be given a second opportunity to consult a lawyer. The waiver in subsection 13(4) does not apply to section 16. In order to close the loophole, the Bill proposes that a waiver provision be inserted into section 16, mirroring section 13, allowing police to deny access to a lawyer in order to prevent the escape of an accomplice or the destruction of evidence. A further amendment will require the police to record their reasons for denying access to a lawyer, and that of course is challengeable in the ordinary way. The Bail Act allows for internal review of bail by the same or another police officer if police bail is refused. The Bill contains an amendment requiring police to inform the accused, where bail is refused or a condition imposed, that he or she may apply for internal review of the decision.
The Bill also contains a significant amendment to section 10 of the Bail Act. Section 10 allows the court, instead of bailing an accused, to dispense with the requirement for bail. This procedure is normally followed where an accused appears in court in response to a summons. The effect of dispensing with bail is that the person is entitled to remain at liberty until required to appear in court, which is section 11. The Bill contains an amendment that would deem the court to have dispensed with bail where no specific order or direction is made in respect of bail. The provision is designed to make things easier for judicial officers, especially during mentions when many of those accused are not even present in court. A similar deeming provision is contained in the New South Wales Bail Act.
One of the reforms brought in by the Bail Act is the provision allowing for bail to be continued under section 33. This has proved popular because of the amount of paperwork the procedure eliminates. There are a number of problems of interpretation with section 33 which need to be overcome. At present, section 33 allows bail to be continued only after an adjournment or postponement. There were doubts about whether a committal or other deferments, such as a deferment during jury deliberations, could be characterised as adjournments or postponements. The Bill contains an amendment which seeks to clarify that bail may be granted following such procedures.
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