Monday, February 20, 2012

Breath test ban forces other changes to bail rules

Paul Bibby | SMH | February 18, 2012

NSW Chief Magistrate Graeme Henson ... confirmed that he had sent a copy of the Supreme Court decision to magistrates across the state. Photo: Brendan Esposito

THE impact of the Supreme Court ruling against random breath tests as a condition of bail has spread through the NSW court system and NSW Police, with at least one other common bail condition also in doubt.

The Herald revealed yesterday that several magistrates and police in western NSW have been ordering people charged with alcohol-related offences to submit to random breath tests to ensure that they are not breaching their bail conditions by drinking.

Known as ''alcohol bail'', it was not specific to driving and few if any qualifications or restrictions were placed on it.

Officers did not have to reasonably suspect that the alleged offender was drunk and there was no limit to the number of times a person could be tested.

Last Friday, the NSW Supreme Court Justice, Peter Garling, ruled the condition unlawful, finding that it was not in keeping with the main reasons bail is imposed, namely for law enforcement, protection of the community or an individual, promoting the rehabilitation of the accused, and ensuring that people show up to court.

The broader implications of the judgment are now rippling across the court system and police force.

The NSW Chief Magistrate, Judge Graeme Henson, confirmed yesterday that he had sent a copy of the decision to magistrates across the state.

It is understood that he also sent a memo informing magistrates of the potential dangers of so-called ''proof provisions'' within bail conditions. These are provisions requiring alleged offenders to prove that they are not breaching their conditions for bail.

The judgment may spell the end of a common curfew condition where alleged offenders are required to present themselves whenever a police officer comes to their home.

The Aboriginal Legal Service and Legal Aid are among organisations that have objected to the condition on the grounds that it has an unreasonable impact on people's lives, particularly within the indigenous community.

''These conditions have the effect in the community of forcing people out of bed at all hours to come to the door,'' one of the principal legal officers at the Aboriginal Legal Service, Jeremy Styles, said.

''And they are often applied to children.''

Following Justice Garling's judgment and the memo from Judge Henson, several magistrates and judges have deleted the ''present to police'' curfew requirement from the bail conditions of alleged offenders.

This includes cases in Bathurst, Broken Hill and the NSW Supreme Court in Sydney.

When a ''present to police'' condition came before the Deputy Chief Magistrate, Jane Culver, in Sydney's Downing Centre local court on Wednesday, she said: ''The decision [by Justice Garling] in Lawson and Dunlevy is against any such condition remaining in place''.

The impact of Justice Garling's decision is also being felt across the NSW Police Force.

A western NSW police source said that it ''had the potential to change operations of the entire organisation''.

The former NSW director of public prosecutions, Nicholas Cowdery, said that Justice Garling's decision was underpinned by the need to protect people's rights.

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