Monday, November 21, 2011

AG at Estimates: Bail

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

The Hon. TREVOR KHAN: Attorney, I think the final question asked by Mr David Shoebridge related to the Bail Act. Are you able to indicate to the Committee what the current trends are with regard to bail and whether the Government is considering any reform of the bail laws in New South Wales? 

Mr GREG SMITH: It is a very topical issue; there was an excellent piece in the Sydney Morning Herald today by Geesche Jacobsen in which she referred in some detail to a submission by the Chief Magistrate to the bail review, setting out the magistrate's perspective on problems. A Bureau of Crime Statistics and Research report on trends in bail and sentencing outcomes in New South Wales criminal courts between 1993 and 2007 revealed that in local courts the proportion of defendants refused bail doubled during those years, from 3.6 per cent to 7.6 per cent. In the District and Supreme courts the proportion of defendants refused bail during that period also doubled, from 23.8 per cent to 47.6 per cent. 

A Bureau of Crime Statistics and Research report on the use of unconditional bail before trial in New South Wales between the years 1999 and 2008 found that over the past decade there has been a marked reduction in the number and percentage of cases where bail is dispensed with, from 60.3 per cent in 1999 to 44.9 per cent in 2008; and that, while there has been some increase in the percentage, 3 per cent, and number of defendants refused bail, the main change has been a rise in the number of defendants placed on bail rather than released unconditionally. 

Another trend has been the increase in the number of juveniles being held in custody pending a court 
outcome—that is, being held on remand. Between 2007 and 2008 the juvenile remand population in New South Wales grew by 32 per cent, from an average of 181 per day to 239 per day. In 2009 there was a downward trend in the juvenile remand population, and this continued to the end of 2010. Remand numbers spiked in March 2011, to 261, and in July of 2011, to 241. On Saturday night 23 October 2011 there were 197 young people held on remand. The average number of juvenile remandees per day in 2010-11 was 193, and this is still higher than the daily number in 2007. 

The juvenile remand rate continues to be characterised by significant fluctuations and remains at an unacceptably high level. Fifty to 60 per cent of young people in detention centres are held on remand; 90 per cent of admissions to detention centres are remand admissions; and approximately 82 per cent of young people remanded in custody do not receive custodial sentences. Pressure is being placed on the remand population by an increase in both the number of juveniles placed on remand and the average length of stay on remand. 

Increases in the remand population are also occurring among adults. As at 16 October 2011, 2,671 people were in full-time custody on remand, awaiting trial or sentence. This is an increase of 86 per cent over 10 years since 30 June 2010, when only 1,433 people were in full-time custody on remand. 

We have commenced the Bail Act review, and on 8 June I asked the Law Reform Commission to undertaken a review of bail law in New South Wales. I am concerned that the Bail Act may have moved away from the spirit and intent of the original legislation—as was reflected in the comments made by the Chief Magistrate, Graeme Henson, reported in the newspaper today. This was to ensure attendance at a hearing or trial, to stop defendants from committing further offences and to prevent interference with witnesses. In announcing the review I was also conscious of the number of people on remand, especially juveniles. I also have concerns about the complexity of bail law in New South Wales and I know these concerns are shared by members of the legal profession and the bench. Bail laws should be as clear and straightforward as possible. 

The terms of reference for the review incorporate issues such as: the objects of the Bail Act; the factors to be considered and presumptions to be applied in bail determinations; the consequences of breaching bail; the desirability of maintaining section 22A of the Bail Act; and the application of bail laws to young people and Aboriginal people and Torres Strait Islanders. The Law Reform Commission can also consider the bail laws of other jurisdictions and any additional bail-related matter. A retired Supreme Court judge, the Honourable Hal Sperling, QC, is leading the New South Wales Law Reform Commission project, with the assistance of its chair, former Justice James Wood, and is due to report next month. 

I would like to make a few comments on the juvenile remand population. I am advised that the heads of justice agencies were asked to look into the issue of increases in the number of juveniles being held in remand, and to identify the causes of the increase. As part of this process, advice was sought from the Bureau of Crime Statistics and Research, which identified two major correlating factors: increased policing of bail conditions, which I think is due to the old State Plan, which we have ditched; and changes made to the Bail Act 1978 in 2007 to prevent the making of repeat bail applications in the same court. I might continue with more comments on that matter later, if that is the end of this period.

Mr DAVID SHOEBRIDGE: Do you have any position as to section 22A of the Bail Act? 

Mr GREG SMITH: I had made comments when I was Leader of the Opposition—shadow Minister. I 
was never Leader of the Opposition. 

The Hon. ADAM SEARLE: You have no aspirations in that direction, Mr Attorney? 

Mr GREG SMITH: I am sure Mr Robertson fills that job better than I would want to. It seemed to me that it was leading to an inordinate number of people being refused bail and it was worthy of examination. 

Originally, section 22A, as I recall it, only applied to Supreme Court bail applications. I remember the old days when experienced criminal lawyers would go judge hunting, as it were, and they could get cases listed much quicker than they can these days and they could predict almost who would be sitting in bails. I think the amendment for Supreme Court bails occurred in the early 1990s. It was only in 2007, I think, that was changed and it had this immediate impact. I do not know that it was a desirable impact because I understand a number of people were being refused bail who, if had they been convicted, could not have received a jail sentence. To me, that is bizarre. 

Mr DAVID SHOEBRIDGE: Indeed. In the last decade there effectively has been a law and order auction in New South Wales, often inflamed by talkback radio and elements of the media. Do you have a strategy to implement the recommendations of the review and deal with what may well be an inflammatory response from elements to any pulling back from that law and order auction? 

The Hon. TREVOR KHAN: There was not one at the last election. 

Mr GREG SMITH: It is up to the Cabinet, of course, as to what ultimately happens to any recommended legislation. I would hope that I can adopt most, if not all, of the recommendations when they come forward. But I have to see them first. From what I have heard of the published submissions—and they are what they say they are, submissions—most of them have favoured the deletion or serious amending of section 22A and they have talked about taking away presumptions against bail. There has been some suggestion of e-bail and that is something we would look at seriously as well. I hope we will get an improved bill, draft bill, out of this. I felt the draft bill that was circulated before the election was too harsh. I am hoping for something that adheres more to the original intention of bails, as expressed in the original Bail Act. 

I know that there might be some media reaction but I have not really concerned myself much about that. My whole philosophy of doing away with the law and order auction and saying we have to concentrate more on rehabilitation and getting down recidivism was always potentially likely to lead to an attack on me. But there has been very little, in fact. In the main, the previous Government seemed to come along with a lot of those views ultimately too. Whilst there always will be criticism, I am sure, of cases where bail is granted and someone seems to have been a serial offender, such as a car stealer offending Skye's law and matters of that sort, I think those are exceptional cases and most bail decisions are probably right. 

Mr DAVID SHOEBRIDGE: On the assumption you get the report sometime in November, will you commit to a timetable for a response, at a minimum, in the first half of next year? 

Mr GREG SMITH: I would like to, but I will not commit. I would like to have it early next year some time. It just depends on what other work we have, what other priorities and what the recommendations are. If the recommendations are hard to sell to my own Cabinet or my own joint party room, then maybe it will not get through as quickly or maybe we will do it in stages. I do not know. 

CHAIR: Attorney, do you want to continue your answer in relation to the Bail Act or would you like a fresh question? 

Mr GREG SMITH: I think I was talking about the juvenile remand population. More recent research by the Bureau of Crime Statistics and Research found that, on average, those juveniles being refused bail by police were those with a high risk of reoffending and few of those refused bail had a low risk of reoffending. 

The Hon. Hal Sperling, QC, will carefully consider the available evidence and come to his own conclusions. An appropriate balance must be struck. As the Bureau of Crime Statistics and Research stated in its research: 
Detaining juveniles who are at low risk of re-offending may cause psychological harm, disrupt the child's family life and/or harm their school performance. Releasing juveniles who are at high risk of re-offending puts the general community at risk. 
Bail conditions are also a key consideration; they are an important means of protecting the community and ensuring a person does not offend again while he or she is awaiting trial. It is therefore necessary, and appropriate, that police seek to ensure that such conditions are observed. However, onerous bail conditions may make it difficult for young people to comply due to their complex needs and/or lack of understanding. 

It is also worth keeping in mind that an accused person has rights under the Bail Act 1978 to seek a 
review in relation to conditions of bail. Section 22A of the current Act provides that a court is to refuse an application for bail if an application has already been made and dealt with by the court, unless there are grounds for a further application. The grounds for a further application include instances where the person was not legally represented when the previous application was dealt with or where there are new facts or circumstances which were not presented in the previous bail application. The provision does not prevent a person from seeking a review of a bail decision in a higher court. An accused person can make a fresh application for bail if he or she has new information to present to the court. 

Juvenile Justice is currently using the Bail Assistance Line and intensive bail supervision in an attempt to reduce the juvenile remand population. The Bail Assistance Line is an after-hours service for police who are considering granting conditional bail to young persons who are in their custody but who cannot be released as they cannot meet their bail conditions. The Bail Assistance Line was established as a result of Justice Wood's Special Commission of Inquiry into Child Protection Services in New South Wales. The service aims to reduce the increasing numbers of young people being held on remand who can be safely supervised on bail in the community more cost effectively and efficiently. 

The period between arrest and sentencing presents a unique window of opportunity for Juvenile Justice to intervene effectively, with the cooperation of other agencies such as Community Services and the New South Wales Police Force, in order to divert young people from unnecessary incarceration. Police contact the Bail Assistance Line when they are considering conditional bail but are unable to locate a responsible adult, transport or appropriate accommodation. Bail coordinators are able to assist police and, where possible, attend police stations and interview the young person, with the aim of locating a responsible adult, providing safe transport and/or arranging accommodation services. The priority target group is young people 10 to 17 years of age and, in particular, young people who are under 14 years of age, with a focus on Indigenous young people. 

Integral to the successful diversion of young people from custody is the provision of services including transport, accommodation and case support. Selected non-government organisations, including CatholicCare and Life Without Barriers, support the Bail Assistance Line through the provision of bail-related services such as transport, accommodation and case support for both Indigenous and non-Indigenous young people. The Bail Assistance Line operates between the hours of 4.00 p.m. and 3.00 a.m. every day, including Christmas, in metropolitan Sydney and the Newcastle-Hunter region. These areas were identified through Juvenile Justice statistics as showing high rates of remand due to a young offender's inability to meet his or her bail conditions. 

Following an analysis of demand for services, resources providing supported accommodation for the 
Dubbo pilot were diverted to enhance bed availability for metropolitan Sydney in September 2011. Police within the Dubbo area are still able to access telephone services from the Bail Assistance Line. Juvenile Justice is currently reviewing the implementation of the operation of the Bail Assistance Line to identify barriers to and options for increasing referrals by police. One of the issues being considered as part of this process is the potential for police to refer young people with minor breaches of bail conditions to be dealt with without arresting and detaining the young person and for referrals to the Bail Assistance Line to be considered as a first option in such cases. 

When requested by the court, Juvenile Justice provides intensive bail supervision with the aim of supporting young people to be released on bail and into supervision in the community. Community-based staff work with young people, court officials and other service providers to ensure that, where appropriate, young people are able to remain in the community whilst being supervised for compliance with bail conditions. Bail supervision aims to provide practical diversionary support as well as being a more cost-effective alternative to custody. The New South Wales Government is committed to ensuring that the spirit and intent of the original bail legislation is reflected in the current law. I have outlined some concerning trends in relation to bail and remand. I have also expressed concern regarding the complexity of the current law. These issues must be addressed and I look forward to considering the recommendations of the New South Wales Law Reform Commission review, which is due next month. 

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