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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1133 ..

bail. It is very timely that we look at the question of bail. It is an important aspect of our justice system and an important right in many instances. But the granting of bail is not something that should be given lightly—especially for very serious offences and when there are some very real concerns.

In a previous debate I mentioned a man named Patrick John Hudd and the dangers of a laissez faire approach to the granting of bail. Patrick Hudd kidnapped the 17-year-old son of his former de facto, Nancy Nomchong. The Nomchongs are an old Braidwood family. Hudd was committed for trial in the Supreme Court in the early 80s. I remember doing the committal. He appeared before Judge Kelly after the magistrate had refused bail. We strongly objected to him being granted bail because of a history of violence and other problems. The judge—unwisely as it turned out—granted him bail. Within 36 hours, Hudd breached his conditions of bail and kidnapped Nancy Nomchong, his former de facto, and took her out of Canberra. He was apprehended by police after a siege in a house in Sydney. He shot at Mrs Nomchong with a shotgun and blew away half her back. Luckily for her, she moved. Had she not moved he would have killed her. Patrick Hudd served a very lengthy period in prison in New South Wales. I have no idea what happened to him after that. It certainly had an effect on the learned judge who was very wary after that in the granting of bail to people with a violent history.

The judge could have benefited from changes to bail laws. It is important to differentiate between the various types of offences. For fairly minor offences I have absolutely no problem with the presumption in favour of bail. The problem with the 1992 act is that it had a presumption in favour of bail for every single offence, ranging from a common assault to a murder. Mr Stanhope’s bill attempts to change that. He imposes a presumption against bail unless there are special exceptional circumstances—and I will come to that point in a minute—for the crime of murder and ancillary crimes related to murder, such as attempt murder and conspiracy to murder. He then introduces a new category for serious offences where there is no presumption either way. It is very similar to the situation that existed 20 to 30 years ago with most offences and in most jurisdictions in Australia regarding bail. For other types of offences, there is still the presumption in favour of bail. The bill does a number of other things as well, one of which we will be seeking to amend.

Some people seem to have trouble with the definition of “the presumption against bail, except in special and exceptional circumstances”. That definition, however, is one that is fairly well known to the courts because there has been a rule that has been applied for many years in our law and in law around Australia—that is, bail is only given to someone who has been convicted and sentenced to a term of imprisonment and who then appeals against the conviction and sentence in special or exceptional circumstances. There is ample case law in relation to that. Some of the criticism of this bill has been that it does not define special or exceptional circumstances—just as it was not defined in section 9A of the Bail Act when I introduced it and which is now becoming section 9D in this particular act. The courts are well aware of what that means. I make the point that it has been in our case law and in our system for many years.

Mr Stanhope’s bill does not go far enough in a number of areas. I have a number of other minor concerns but I will I will speak about them when he moves a couple of his amendments. The Law Reform Commission is hardly a body of rednecks. It was headed by Justice Ken Crispin, now the President of the Court of Appeal and an ACT Supreme

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