Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2003 Week 7 Hansard (25 June) . . Page.. 2442 ..

MR STEFANIAK (continuing):

This effectively casts on to the Crown the burden of proving any facts that might justify a denial of bail.

This is an issue that many judges and magistrates have commented on in recent times. Only last Saturday week, the President of the Court of Appeal, the second most senior judge of the Supreme Court of the territory, indicated that, in the case before him-a case of murder-because of the Bail Act, in which there is a presumption in favour of bail, he felt his hands were tied; he had to grant bail.

He's not the first one to complain about that. The former Chief Justice has mentioned it on a number of occasions, as has the Chief Magistrate. They have mentioned it publicly in cases. They've certainly mentioned it privately with me, as indeed have a number of other judicial officers. Quite clearly, it is an issue that concerns our courts.

The commission in its report, when it came up with this particular suggestion I seek to enact, indicated:

... the Commission accepts that people should not have their freedom restricted save for compelling reasons. Hence it does not suggest that the presumption should be reversed in all cases but only when the accused person is charged with an offence of sufficient gravity to fairly raise substantial concerns that his or her release might involve real danger to members of the public. The real difficulty lies in determining how to define the range of offences that fall into this category.

They deliberated on that and came up with their recommendations contained in paragraph 95 on pages 36 and 37 of the report. Those recommendations are contained in my bill, as can best be transposed by Parliamentary Counsel who did a wonderful job. I take this opportunity to thank John Clifford and the members of his team that assisted. My bill faithfully represents what the commission recommended. Paragraph 95 of the report states:

The Commission recommends that section 8 be amended:

by adding to paragraph (2) (a)-

and this is the Law Reform Commission's recommendation-

the words 'other than an offence referred to in subsection (3); and

by adding as subsection 3 the words:

Bail shall not be granted or dispensed to a person charged with an offence of-

and they list offences-

(a) treason or murder;

(b) any offence in the course of committing which the accused person is alleged to have used or threatened to use violence with a weapon apparently capable of causing death or serious injury or a replica of such a weapon;

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .