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Legislative Assembly for the ACT: 2003 Week 7 Hansard (25 June) . . Page.. 2440 ..

MR STEFANIAK (continuing):

The conclusions expressed in the report reflect the considered views of the present members of the Commission formed after carefully weighing those issues and considering the various submissions.

The commission did a quite detailed and learned report. One only needs to look at the members of the commission to see the calibre of the people actually involved. That particular commission consisted of Justice Kenneth Crispin, Mary-Ellen Barry, Professor John Braithwaite, Lisbeth Campbell, Professor Richard Campbell, Peter Hohnen, David Hughes, Jennifer Kitchin, Ian Nichol, and Philip Walker. Professor Charles Rowland was a special adviser.

It's worth while quoting from parts of the commission's report. In their introduction, they stated:

In recent years, there have been a number of cases which have generated considerable public concern about the granting of bail. In the ACT this concern has been fuelled by a number of well publicised cases, such those in which bail was granted to David Eastman in relation to a charge of murder and to Colin Dunstan in relation to charges of sending letter bombs through the mail. Cases of this kind obviously led to fears that other people might be harmed if bail were granted or continued. However, similar concerns have been expressed, not only in relation to allegations of murder, rape and other offences of violence, but cases in which alleged offenders have been granted bail in relation to property offences, such as burglary and car theft. These concerns have been echoed in other Australian jurisdictions. Many people have plainly felt that the law has not adequately protected them from violence, the violation of their homes and/or the theft of their property.

The commission went on to state:

The quest for certainty may sometimes lead to inflexible provisions that limit the powers of judges and magistrates in ways that are both unnecessary and undesirable. However, the balance between respect for the freedom of individuals and concern for the protection of the community is a matter of profound importance to any democratic society, and appropriate principles need to be established. Hence, whilst any decision must ultimately involve the exercise of judicial discretion, that discretion should be exercised within the context of statutory provisions reflecting an overall approach to bail which the legislature has determined best reflects community values.

As I said earlier, Mr Speaker, until 1992, there was no specific presumption in favour of bail, although there's some reference in statutes that common law applied. Of course, a lot of concerns were raised then-and I'm putting this in context-because of one classic example where bail should have been refused for a serious offence. It was a matter I prosecuted, a man named Hudd, whose former relationship had turned sour. He then kidnapped his former de facto's 17-year-old son.

The defendant had a fairly extensive record. It was pointed out to the committing magistrate, who quite sensibly remanded him in custody. The magistrate was hardly a redneck and indeed was regarded as perhaps a bit of a soft touch, but he certainly did the right thing there, as was his right.

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