<< back to archive index Speeches Regarding Bills Date: 24th June Subject: Bail Amendment Bill 2003 From Hansard "I oppose the Bail Amendment Bill as I believe it is simply another example of the Government's silly populism. The Government is busy rewriting both the civil law and the criminal law in New South Wales, and not for the better. The criminal law is returning to the dark old days of Liberal rule, for those who have memories of that. We had a rare period of enlightenment under Attorney General Jeff Shaw. Now we are winding the clock back to the dark ages of the 1950s, just as John Howard is doing federally. I congratulate Bob Debus on not reading the second reading speech for this bill in the lower House. I wonder whether he was ashamed of it. These reforms to the bail laws have been brought on as a result of the death in Newcastle of Trish van Koeverden, who was killed by her estranged husband who had been released on bail. The facts of this case were spoken about by my colleague the Hon. Peter Breen. The police sought an apprehended violence order [AVO]. The defence consented to an AVO. The police then opposed bail, but their arguments were refused. In a sense the magistrate was conditioned in his mind by the fact that the police had only sought an AVO previously. The magistrate granted bail but wanted $5,000 in cash. The defendant appealed to the Supreme Court on the grounds that he did not have $5,000. The question at issue for the Supreme Court was not the bail but the $5,000. The defendant put up as security his daughter's house and his daughter-in-law's engagement ring. On that basis, bail was granted. The man then went and killed his wife before shooting himself. Presumably the mistake was that the police should not have requested the AVO, which in fact weakened the case when police then asked for bail to be refused. The police should have refused bail in the first place. This legislation will not solve that problem because fundamentally what was asked for was possibly the wrong thing and the judiciary was perhaps not at fault after all. This legislation is taking power from the judiciary and giving it to the police. It is most unfortunate when mistakes are made. However, I do not believe we should simply put everybody in gaol on the assumption that it is better to have more people in gaol than to let anybody out. Of course, there is a downside to gaol. Aboriginal deaths in custody and the incredible violence in prisons need to be considered. Some 20 per cent of crimes are committed by people already in gaol. Given that relatively small population, it shows the high incidence of crime. The brutalisation of that makes it much more difficult for people coming out of gaol to fit back into a normal society. This bill seeks to do three things: first, to prevent a person accused of murder from being granted bail, other than in exceptional circumstances; secondly, to prevent a person accused of a serious personal violence offence who has been previously convicted of a serious personal violence offence from being granted bail, other than in exceptional circumstances; and, thirdly, to introduce a procedure whereby a decision by a magistrate or an authorised justice to grant bail to a person accused of a serious offence is stayed or deferred pending a review by the Supreme Court. Effectively, it reverses the onus of proof. Some 14 solicitors from Marsdens Law Group wrote me a letter stating: The object of this legislation is to provide a temporary stay of a maximum of three (3) business days after the day on which the decision was made in relation to the accused person's bail. This, in effect, would mean that if a person is arrested on a Friday evening and refused bail and placed before the Court on a Monday, then they do not have to be released until 4.00 p.m. on the following Thursday. This would be, in effect, six (6) to seven (7) days in custody. If the period of incarceration is over a long weekend then it would be even longer and one can continue to give examples of even longer periods depending on the time of the year that the relevant incarceration applies. We, the solicitors at Marsdens Law Group, strongly express our grave reservations in respect of this legislation. This legislation relates to murder allegations and serious personal violence offences. It does, however, reverse the onus of proof. It turns our whole judicial system upside down and it fails to acknowledge, as we all know, that there have been many people charged by the Police in relation to violent offences, or the like, who have not been guilty and have had their lives ruined by being held in custody for unnecessary and lengthy periods of time. The Law Society made the point that there were 55,000 bail applications in 2001. From about 120 magistrates, in 2001 there were four reviews of bail decisions in matters prosecuted by the police and four in matters prosecuted by the Director of Public Prosecutions [DPP], which is eight in total. In 2002 there were 11 reviews of bail by police and 7 in matters prosecuted by the DPP, which is 18 in total. So in 2002 there were 18 reviews of bail out of 55,000 bail applications, which works out at about one in the working life of each magistrate. That is how rare it is. Yet we are changing the entire rule book on the basis of one case. Another issue to consider is deaths in custody. There is a sad history of deaths in custody, mainly of Aboriginal prisoners both in New South Wales and in other States. In January this year a 23-year-old Aboriginal inmate died in the John Moroney Correctional Centre at Windsor. The man should not have been in custody but his sentence had been miscalculated. There is a parallel with this legislation, in that the appeal mechanism this bill seeks to put in place would put a person in custody who perhaps should not be in custody. A person may be innocent and subsequently released on bail, confirming the decision of the magistrate. In the meantime there is a finite danger that the person may die in custody. The legislation is anecdotally driven. It is easy enough, as Reverend the Hon. Fred Nile did, to take an extreme case and define the facts very much against bail, or find a case in which a mistake was made and then wax lyrical about how everyone should be locked up-from the particular to the general. On 27 May, in his answer to a question from the honourable member for Wakehurst, Mr Carr claimed that the number of remand prisoners has increased from 719 to 1,080, which proves how tough he is on bail. The money needed to maintain those 1,080 in gaol, if it is a constant number, is $60 million year. It would be better to use that money to help the victims of violence, better assess violent people, and provide better support for wives and kids. Money used in that way would provide far more widespread benefits than the brutalisation of being scared by a single mistake that was not entirely due to the judiciary. This is a knee-jerk and foolish response. The reversal of the onus of proof, as if the judiciary were fools, is a very bad thing. When we were debating the Crump legislation people with a video of John Laws lobbied me to overrule judges in 14 cases, because 14 cases were affected by the legislation. I am pretty good, but I would not pit myself against 14 proper judicial hearings based on evidence I had from a John Laws tape. The idea that we know that much better than the judiciary is an arrogance that ill becomes us. The Government should be ashamed of itself. It should stop the populism. It should start to think about how to prevent crime and use our money wisely. The separation of legislation and the judiciary is extremely important. The Government should return to that principle post haste. The Australian Democrats do not support the bill."

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