Criminal Law

By Ben Aulich


The whittling away of the presumption of innocence

I recently overheard café talk about Jarryd Hayne and how bad it was that he is “able to walk free whilst the charges are still going, and he will probably have a re-trial”.

I felt like interrupting the people talking and asking, “why would Mr Hayne not get bail?” I can’t think of a better case for bail.

As soon as the NSW Court of Criminal Appeal quashed the conviction (rightly or wrongly) Mr Haynes’ status changed from guilty to not guilty. Innocent until proven guilty ring a bell? He turned up for his trial last time (even knowing he would go to gaol if convicted), there was no allegation he breached any bail conditions whilst on bail, and there was no allegation he “re-offended” whilst on bail. So why would he not get bail?

Of course, if he is convicted, he will serve a significant period of time in gaol. We saw that when he was sentenced. But now he is not sentenced, and he should only have to serve his sentence if and when he is convicted.

Over the last say 10 or so years we have seen a whittling away of the presumption of innocence and the presumption for bail. Some offences now have a presumption against bail (how that sits with innocent until proven guilty is unknown), some have no presumption either way and others (but far less than before) have a presumption for bail. Section 9D of the Bail Act 1992 (ACT) was enacted to ensure it is almost impossible to get bail if you re-offend with a serious offence whilst on bail.

Victim advocates, police and most prosecutors all call for the “tightening up” of bail laws. They usually make grandiose statements about “victims” and perpetrators and call for it for the safety of the community. There are induvial cases cited to effectively argue “no-one should get bail”. Man Haron Monis the Islamic extremist of Lindt café infamously, is often used to show why all the bail laws need an overhaul. He was on bail whilst he committed the murders in Lindt Café. But he is an exception. Thousands of people get bail every day across the country.

No system of justice is perfect. All of them have flaws and all of them have individual cases which appear unjust or unfair to one side or the other. I could list tens of cases where my clients spent significant amounts of time in custody because they were not granted bail only to be found not guilty at trial. They can’t get those years back. If we keep changing bail laws – we’ll need a new gaol or at least a new wing for people not yet found guilty but awaiting trial. Are we all prepared to pay for that?

The so-called left wing, civil libertarian labour government run by Jon Stanhope with Simon Corbell as Attorney-General years ago saw the systematic erosion of civil liberties including making knee jerk changes to bail lawyers to ensure it is harder for people accused of crimes to be granted bail. Mr Stanhope’s successors have just continued that trajectory.

I have been following the Zero Bail Policy in Los Angeles recently. This is a policy where anyone charged with minor offences is granted bail on a $0 bond. Of course, the LAPD and city officials have been screaming foul and suggesting that this has increased crime in LA. The Mayor even commented that since the city has opened up post COVID lockdowns, it now needs Judges that are prepared to put people behind bars.

Contrary to this fear mongering by the LAPD and the LA Mayor, researchers who have tracked bail reform policies[1] have found that a zero-bail policy does not contribute[2] to an increase in crime. In fact, there is ample evidence that pretrial incarceration increases the chances that a person will be charged with a new offence[3], because of the harmful consequences of incarceration, including loss of employment, separation from families and isolating individuals from their community.

So far Shane Rattenbury as our current Attorney-General has stood firm on changing laws to erode human rights and civil liberties and should be commended for doing so. I just hope he has enough support to continue to actually think about what the proposed change to the laws actually means and not be guided, like so many politicians are, by what might get an extra vote.

[1] Releasing people pretrial doesn’t harm public safety | Prison Policy Initiative

[2] NYPD’s own stats debunk claims about bail reform link to shootings (

[3] Justice-Denied-Evidence-Brief.pdf (