Page 2190 - Week 06 - Wednesday, 9 May 2012
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I will by necessity be brief today because some of the matters that prompt this motion are immediate and raw and will be the subject of legal action. I will not be addressing last week’s incident outside the Canberra Hospital, save to say that the hearts of all Canberrans go out to the women victims and their families. I am sure it is fair to say that our thoughts in this place and our prayers will be with those families at this moment. The facts and events of last week are for the courts to address and I do not propose to reflect upon those events here.
Sadly, the events of last week highlight most graphically and in a raw way the failure of the bail system. And I will reflect upon that. Before doing so, I think that it is useful to look at what the bail system is. When people are accused of committing an offence and when they are arrested and charged by police, a decision must be made about whether to remand, that is, to hold them in custody or release them on bail.
The word “bail” is used to describe the process of release and the agreement the person makes to return to court and sometimes to comply with other conditions. Once an accused person is charged with an offence, the police file the charge with the Magistrates Court and a date is set for the accused to return to court for the charge to be heard. Generally there are three ways to require accused persons to appear in court: by summons, by arrest, charge and bail or by arrest, charge and remand.
We also need to look at who is entitled to bail. Before the institution of the Bail Act in the ACT, as elsewhere, bail decisions were guided by the common law. The common law, as does the Bail Act, favoured the accused being released on bail rather than being held on remand. The onus is on the prosecution to show why the accused should not be given bail. The Bail Act, which has codified these rules, contains a general presumption in favour of bail, that is, an accused is generally entitled to bail.
The general criteria are that an accused person is entitled to be released on bail unless the prosecution satisfies the court—and the test is not beyond a reasonable doubt but on the balance of probabilities—that there is an unacceptable risk that if the person were released on bail they would fail to appear in court in compliance with bail, commit further offences while on bail, somehow endanger the safety or welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice. In assessing whether there is an unacceptable risk, the decision maker must look at all relevant considerations, including the nature and seriousness of the offence, the accused’s character, antecedents, any prior convictions, his associations, his home environment and background, the accused’s compliance with previous grants of bail, the strength of the evidence against the accused and the attitude of the alleged victim of the offence to the grant of bail, if that is known.
These are quite stringent tests, and a simple reading of the Bail Act would indicate that most of these things are covered. However, it is its application and its strict reading by the Supreme Court and the Magistrates Court that have caused concern. There have been a number of high-profile cases that have resulted in people questioning the bail system.
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