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.

Unfair bail laws used as punishment: magistrate

Geesche Jacobson | SMH | 26 October 2011

BAIL laws are too complex and suspects are often kept on remand as a ''form of pre-emptive punishment'' or granted bail only on ''draconian and ultimately pointless conditions'', the state's most senior magistrate has said.

The Chief Magistrate, Graeme Henson, said prosecutors had a ''culture that bail should be opposed'' and that the judiciary was often ''forced into a semblance of complicity'' in executing their agenda.

His comments are contained in a frank submission to the NSW Law Reform Commission's review of bail laws, which is expected to hand down its findings within weeks.

The review, a government election promise, was sparked by the large increase in the percentage of the state's inmates who have not been convicted of any crime but are in prison because they were refused bail.

It also follows a call last year by the Chief Judge of the District Court, Reg Blanch, for a review of bail laws.

Last June, a quarter of inmates - or 2624 people - were on remand, compared with 11 per cent in 1994.

Bail laws were progressively tightened under the previous government in what the submission by the Office of the Director of Public Prosecutions called ''ad hoc legislative responses in a get tough on law and order climate''.

Most submissions favour a relaxation and simplification of the laws to cut the number of people - up to 30 per cent - who are eventually acquitted after spending time in jail. The Attorney-General, Greg Smith, said last year it was only a lack of funds that stopped many of these people suing the state government.

Even the DPP and Corrective Services are critical of current laws and most submissions say accused people should be free unless they are a risk to the public or might fail to turn up in court.

Prison authorities have recommended a trial of ''e-bail'', or electronic monitoring of people on bail.

One contributor to the rise in the number of people on remand has been the introduction of a ''presumption against bail'' for certain offences.

This, says the submission by Legal Aid NSW, has equated the chances of getting bail of people breaking into the school tuckshop with those who have committed an armed home invasion.

These categories were ''illogical and difficult to apply'', said Mr Henson, who calls for the abolition of the presumption against bail based on offences.

He is also critical of the provision that restricts repeated bail applications, saying that it has had ''a disproportionate impact on defendants in positions of social disadvantage, such as the homeless''.

This year a homeless man had serious charges against him dropped after spending more than a year in prison, having been refused bail as he had no steady address.

Mr Henson is also critical of ''overly complex and onerous'' bail conditions, a submission mirrored by others. The Legal Aid submission opposes strict conditions, including curfew, for children and cites the example of ''Kristy'', who became homeless after constant police checks on her curfew disrupted her family and neighbours.

He also suggests a trial of ''pre-charge bail'', as used in Britain, which would allow police to release a person on bail, while deferring the decision to charge.