Bail in the ACT – far more complex than most people appreciate

Late last week the Canberra Times carried an article which suggested the ACT was on target to record its highest ever number of arrests for bail breaches. The article also indicates that in a recent ACT Estimates hearing, ACT Chief Police Officer Neil Gaughan told the committee that “certain aspects of the Bail Act need to be looked at”. Apparently, one part of the Bail Act Officer Gaughan thinks needs to be reviewed is section 44, which gives the DPP power to appeal decisions to grant bail in certain circumstances.

ACT Attorney-General Shane Rattenbury has previously disavowed a full judicial review of the ACT Bail (and Sentencing) legislation but instead has commissioned a study by the Justice and Community Safety Directorate around “how bail is constructed in legislation and whether any recent cases in courts have thrown up question marks”.

There’s no doubt the “law ’n’ order” debate and being “tough on crime” is a sexy topic and attracts a lot of attention from lots of people. Unfortunately, many of those people tend to be ‘armchair commentators’ who don’t really know what they’re talking about.

Before we rush into doing anything drastic – let’s look at what bail actually is and how it works in the Territory. Before we do that though, we first need to look at how criminal proceedings are initiated in the ACT. A lot of criminal proceedings, but particularly less serious ones, begin by way of summons – that is a piece of paper that tells a person they have to turn up to Court on a particular day to answer the charge(s). If a matter proceeds by way of summons, there is usually no bail at all.

Other criminal matters are instituted by way of arrest. In short, police should only arrest someone if proceeding by summons would not achieve 1 or more of these purposes:

Ensuring the appearance of the person at court;
Preventing repetition or continuation of the offence or other offences;
Preventing concealment, loss or destruction of evidence relating to the offence;
Preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
Preventing the fabrication of evidence in respect of the offence;
Preserving the safety or welfare of the person.

In practise, police tend to arrest people far more often than they should and without necessarily being satisfied that one of the above purposes justifies an arrest.

If somebody is arrested for an offence, the police must first decide whether they would grant bail from the City Watch House. Generally, police refuse bail for all family violence matters and serious charges.

If a person is refused bail by the police, the Bail Act requires that they be brought before the ACT Magistrates Court as soon as possible, but no later than 48 hours after being taken into custody.

As a starting point, the Bail Act mandates an entitlement to bail for certain minor offences – offences that are not punishable by imprisonment, offences punishable by imprisonment for 6 months or less or for breaching the peace.

For very serious offences like murder or when somebody is already on bail for a serious offence and is alleged to have committed a further serious offence; generally, that person cannot get bail unless they satisfy the Court that special and exceptional circumstances exist. There is a whole lot that can be said about the special and exceptional circumstances test – but that is for another time. In short, it is a high threshold and is not easily satisfied.

For all other matters (this is where the majority of matters fall) – a person is entitled to be granted bail unless the Court is satisfied that the refusal of bail is justified after considering a number of criteria (we lawyers call these the section 22 criteria). For some less serious matters, there is a presumption for bail and for more serious matters or if the person has previous convictions for certain offences, the presumption can be neutralised.

The section 22 criteria are:

The likelihood of a person appearing in court;
The likelihood of the person doing one of the following when on bail:
1. Committing an offence;
2. Harassing or endangering the safety or welfare of anyone;
3. Interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else;
The interests of the person.

In considering these factors, the Court can have regard to:

The nature and seriousness of the offence; or
The person’s character, background and community ties; or
The likely effect of a refusal of bail on the person’s family or dependants; or
Any previous grants of bail to the person; or
The strength of the evidence against the person.

The Court requires evidence going to the likelihood of not appearing in Court or committing further offences. Speculation is not good enough – nor should it be.

The Court can then impose bail conditions designed to address any risk identified during the assessment of the section 22 criteria – for example, if there is a risk the person won’t appear in Court, the Court may require the person to report to police on a regular basis or require another person to deposit money with the Court to guarantee their attendance). Other conditions routinely imposed include things like not contacting or staying away from the alleged victim or witnesses and residing at a particular address.

You will see from what I have set out above that there is a lot involved in the bail decision making process – and that is after I have tried to simplify it as much as possible in this explanation.

In my experience as a criminal defence lawyer practising in this jurisdiction for the last 14 years, the ACT Courts approach bail decisions carefully and seriously and our Judges and Magistrates generally get it right.

Just because there have almost 1000 bail breaches so far this year does not mean the bail system is broken. You cannot reach that conclusion without further data. It may, in fact, be a sign that the system is working. If a person breaches bail in a serious way, then they are likely be remanded in custody. If it is not a serious breach, they are likely to get a warning and their bail will be continued.

In my experience most bail breaches are not serious and usually involve some element of forgetfulness on the part of the accused person. For example, Mr Smith forgets to report to police on a Wednesday, or shows up to the police station 30 minutes late. The police arrest him (despite the police having a discretion not to) and he spends the night in custody, appears before the Court the following day, gets a warning from the Magistrate and his bail is continued. It is rare in my experience for there to be a spectacular breach of bail where a person commits further serious offences (and if they do – there is a mechanism for dealing with that (as explained above)).

Any changes to the bail laws in the ACT must be approached with extreme caution, with the Human Rights Act in mind and whilst resisting the sexiness of wanting to appear “tough on crime”. The consequences of overly tightening bail laws can be considerable. Any tilt too far in the wrong direction is likely to result in sky-rocketing remand populations – something with which our already struggling custodial system cannot cope. Worse still, it will also lead to an increase in innocent people being remanded in custody whilst they wait many months for their matters to be determined by the Court. That is not something a civilised society should ever accept or be okay with, no matter how tough it makes us look.

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Bail in the ACT – far more complex than most people appreciate