Criminal Law

By Peter Woodhouse


Tabloid journalists shouldn’t dictate changes to bail laws (and we should be wary of their attempts to do so)

In the last month there has been a chain of news stories bubbling away in relation to NSW bail laws and a few controversial bail decisions recently made in NSW Courts.  Unsurprisingly, a lot of those stories have appeared in News Ltd. publications, including The Daily Telegraph.  Similar stories are getting plenty of airtime across Sydney talk-back radio stations.

The tenor of most of those stories is that alleged offenders are being granted bail when the police don’t think they should.  This story got the most traction recently when Mostafa Baluch fled after being granted bail last month.

Unfortunately, the NSW government has a long history of marching to the beat of the drum set by tabloid journalists and shock-jock talk-back radio announcers, going back to the significant tightening of NSW bail laws in 2014 when the “show cause” test was implemented in relation to serious offences and in response to an outcry fueled by the media.

Take it from somebody who practices in the area often – those reforms made it much harder to get bail in NSW and it is generally quite difficult to get bail in NSW for somebody charged with a serious offence.  The laws do not require further toughening.

There has been a lot of drum beating by NSW Police Minister (and man with a thumb for a face), David Elliot.  Last night, Mr Elliot said he would be having “full and frank discussions with the Attorney General with regard to how some members of the judiciary are interpreting their role in the justice system”.

This sort of rhetoric should sound alarm bells.  It may come as a surprise to Mr Elliot – but a fundamental part of our system of Government is the separation of powers.  That is the executive (of which Mr Elliot is part) is separate from the judiciary – and for good reason.  It is highly inappropriate for a police minister to interfere with decisions made by members of the judiciary.  Such interference would grossly undermine public confidence in the judiciary and most likely lead to a corrupt system.  The public commentary on such matters is arguably already inappropriate.

Unfortunately, the tone of this media coverage is already filtering into the system.  Last week, I appeared in the NSW Local Court for a person charged with serious drug offences.  In opposing my client’s release on bail, the police prosecutor made the ridiculous submission that the Magistrate should be hesitant to grant my client bail because ‘look what happened when the Court granted bail to Mr Baluch’.  Thankfully, the Magistrate took his job seriously and carefully weighed up the various bail risks, based on the evidence before him without fear or favor.  The Magistrate ultimately decided it was an appropriate matter to grant bail, albeit on strict conditions.

Whatever happens in NSW, the community needs to remember that for every one Mostafa Baluch, there are many more people who turn up when they are supposed to and comply with their bail conditions.  If bail was refused to every person that the police wanted, remand numbers would go through the roof and the jails could not cope. Granted, the system is imperfect, but it is about balancing risk.  In my experience, Magistrates and Judges tend to take their responsibilities when determining bail matters very seriously and they generally get it right.

Hopefully, the Attorney General will refrain from bowing to pressure from the media in relation to any additional tightening of bail laws and perhaps instead the people of NSW would be best served if the Government consulted with people who interpret and impose those bail laws every day.