For many years now, I have been deeply concerned about the way the judicial system seems to favour perpetrators of crimes rather than the victims of crime. Just in the last few days a Brisbane man was cleared of killing his neighbour after he punched him. He punched: The guy died. But the accused is now free. During the last two years there have been a number of high profile cases where people have been assaulted or murdered by offenders either out on parole or on bail.
The two tragic examples relating to bail that have happened in the last few weeks and about which I have blogged have been:-
The Bourke Street Murders: – committed by a man out on bail. Click here to read that blog.
The murder of a Gold Coast mother in front of her children, by her husband: who was out on bail. Click here to read that blog.
I wanted to get my head around how people with violent histories who are charged with violent crimes, seemingly get bail very easily and are therefore released back into society to reoffend.
So I interviewed the following people:
- A Queensland Policeman.
- A NSW Policewoman.
- A NSW Policeman.
- A Victorian Policeman.
- A Criminal Lawyer who has both acted as a prosecutor and a defence lawyer.
- An ex violent offender who has spent 50% of his life behind bars.
- A Federal Politician: Karen Andrews
Here is my disclaimer. I am not a Lawyer nor a Policeman and I have had little to no experience in the Justice System, except to be sworn in, in a court to become a JP, so this blog is just my research from talking to people involved. It’s in no way meant to be a Royal Commission into the Judicial System. It simply is my personal journey to try to understand the Bail System and come to whatever conclusions I can about potential fixes.
Possibly the weakness of this blog is the fact that I didn’t get to interview a Magistrate for their side of the discussion.
This blog is also my attempt to gather all the great information I harvested in the hours of interviews that I conducted and make meaningful sense of the material, without going into too much detail and thereby losing the reader. So here is what I found out.
The Judicial System is state based and so Federal Government MP Karen Andrews could only sympathize with the outrage the community feels about the bail system. We did discuss at length the value of removing the State Government level of Government, and Federalising the Judicial System, which from what she was saying seemed to have significant merit. But removing the State Governments is a topic for another blog.
The reason I mentioned up front that the Judicial System is State based is due to its relevance. The process by which an accused offender will get bail differs slightly between States. I will identify the differences throughout the blog.
Here is the process of an offender being charged and bailed in the words of a NSW Police Officer.
In NSW there is a presumption towards bail for offenders in most instances however there are some offences where there is no presumption for bail, these include your more serious offences and domestic violence offences.
The officer reviewing the charge is required to conduct a risk assessment on the offender in order to grant or refuse bail. This risk assessment covers the seriousness of the offence, victim protection, protection of evidence, whether or not the offender is likely to attend court (flight risk) and their previous criminal history. There may be other things in there however this is the basic things police looking at bail most focus on.
The risk assessment is electronically recorded and if the officer conducting it is not satisfied that they can mitigate the risks, the person is bail refused and placed before the court at the earliest time possible. Most times it is the same day that they are arrested however sometimes it may be the next day.
Police are the first port of call in determining bail with persons who are in police custody with charges laid. In most instances police err on the side of victim and community protection, especially with offences of violence and recidivist offenders. Once before the court however, all bail applications are at the discretion of the presiding magistrate/judge.
When it comes to the magistrate/judge, in my experience they are less influenced by victim and community safety issues (although these are taken into consideration) and more concerned about procedural fairness and the rule of law. The justice system is not set up to cater to victims, it is there to ensure that the those appearing before our courts get a fair hearing. The court operates under the assumption of “Innocent till proven guilty” and bail decisions are made based on their individual merits.
I do not think the courts have the same risk assessment process that the NSWPF has implemented.
At court, defence solicitors mostly make a bail application for their client and present all sorts of amazing reasons why their client deserves bail, tell sob stories about their circumstances, promise that they will abide by AVO’s, live at certain places and (this is an actual bail condition I have seen) “Be of good behaviour.”
The Police prosecutor will most likely oppose the application – arguing the seriousness of the offence, the offenders previous history, their flight risk and the likelihood of a conviction based on the evidence in the brief.
The Magistrate will then either deny bail and remand them into corrective services till another date or grant bail and give them “strict” bail conditions – like reside at an address – report to police – surrender their passport – whatever they deem will mitigate the risk to the community/victim.
Yes, sometimes the Magistrates decisions baffle us as police officers – however that comes from our respective positions. Police want to protect the community/victims – the court is more interested in procedural fairness and the rule of law.
What is infuriating to police is when offenders are on bail and they breach that bail, police arrest them and put them before the court to have their bail reviewed only to have them released again, sometimes with their bail conditions removed!! Lots of examples of this in my small experience.
I asked this Officer how would they fix the system:
Too often offenders are on multiple bails (because let’s be honest the same minority commit the vast majority of crime) which almost always conflict with each other. I had one offender who had two different residential conditions on two different charges. He was supposed to reside at two house some 700 kilometres apart…..How do you police that?!
The courts need to introduce a centralised system where magistrates making bail determinations can conduct and record a LIVE REAL TIME risk assessment with full access to all current conditions, pending court matters, cross checking addresses, sureties, AVO histories etc etc. Making their decisions off the cumulative facts – not just what the offender tells them in court (yes I have witnessed this first hand – crooks lie people!!) and police submissions.
A centralised system which is updated in real time would go a long way to providing the evidence we need to undertake a review of the bail decision making processes with a view to changing the legislation to bring the courts in line with community expectations of victim protection. Our judicial system is archaic. While I don’t believe that any one judge or magistrate should be held personally responsible for a “bad” bail decision – I certainly believe that the process of that decision-making needs to be very transparent and reviewable so we can learn from these atrocities and reduce the likelihood that they reoccur. (end quote)
In Victoria, if an offender is charged out of hours and there are no Magistrates on duty to preside over a bail Hearing, then a volunteer Bail Justice can hear the case and make a ruling. This was the case for the accused man, Dimitrious ‘Jimmy’ Gargasoulas, who then went out and committed the Bourke Street Mall killings.
Quoting from an article on news.com.au
HOW THE BAIL JUSTICE SYSTEM WORKS
No formal qualifications are required to become a bail justice.
Bail justices are unpaid volunteers, called in after-hours, normally to police stations, to conduct hearings on applications for bail or remand in the immediate hours after suspects are arrested and charged. The system has been in place since the late 1980s.
Initial entry into the program is easy: applications can be made online at the Victorian Government’s Honorary Justice Office website.
Residents only need to be over 18 years, an Australian citizen and not be insolvent.
After that application is lodged, there is a recruitment information session and then the person has to complete a police check, interview, probity check, training course and meet selection criteria including strong interpersonal and conflict management skills, initiative, empathy and cultural awareness before the Attorney-General recommends an appointment to the Governor in Council.
They are given only basic legal training.
Bail justices must “respect, observe and adhere to the highest levels of personal, social and community standards of integrity and professionalism,” the website says.
Before being appointed, they are required to “successfully complete the Bail Justice Training Program to demonstrate a high level of technical ability to conduct after-hours hearings and understand and apply the legislative framework within which Bail Justices operate.” (end quote)
It seems to be mind blowing that you can do a short course and then apparently be qualified to determine if some of the Australia’s most dangerous violent offenders can be released back into the community.
Speaking to the Victorian Policeman, he said one of the biggest issues is not only Bail Justices, but also, that the Magistrates don’t back up the police. For example, in the case of the Dimitrious ‘Jimmy’ Gargasoulas (Bourke Street Mall accused), Police opposed bail and yet the Bail Justice released him.
Interestingly, Police also strongly opposed the granting of bail of the man who murdered his Gold Coast wife two weeks ago.
All four Police Officers I spoke to, said they felt that the Judicial System lets the police down, with frustration being expressed that even when the Police strongly oppose bail, offenders are released.
One Officer said that 9 out of 10 offenders who go before a Magistrate are granted bail. But think about this for a minute. If the police are happy to not remand the accused, then the police would have already released them. So if they are before a Magistrate (or Bail Justice in Victoria), police have already determined that they should not be in the community….and in 90% of cases, they are released:- (according to several of the Police I spoke to).
Surely this has to be a horrifying statistic. And I understand I have not been able to verify that that’s an accurate figure, but certainly the level of frustration within the Police I spoke to would seem to verify it.
One of the other significant problems with the Judicial System seems to be the lack of accountability of the Magistrates or Bail Justices. One Policeman said that the scrutiny and accountability on Police Officers is very intense, yet there is no accountability or scrutiny for Magistrates. If a Magistrate releases someone on bail and they go and commit murder, there is no recourse back to the Magistrate.
During the interviews, I became aware that there are obviously some Magistrates who are more lenient than others. I don’t understand this as I was under the impression that the law is the law and not seemingly and arbitrarily open to biased interpretation or personal agendas. One Officer told me some Magistrates are very supportive of the police whilst others aren’t.
One Officer spoke of when the Police arrest a person out on bail for violating bail conditions. Often the Magistrate will simply remove the bail conditions that the person was violating and then return them to the community. So, for example, if a bail condition is that the accused is not allowed out of their house after dark, and they are arrested at 10pm at night, the magistrate will just remove that bail condition. This must be so frustrating for the Police.
Another comment that I thought was relevant and interesting is that one of the things that influences the granting of bail is whether the remand centres and prisons are nearly at capacity. Currently, and the reference was toward the Victorian system, the Prisons are pretty much full and so the State Government subtly says to the Judicial System, we can’t afford to remand people and so bail has to be the way to go.
But, in the same breath, the Andrew’s State Government on the 4th December 2016, announced the recruitment of nearly 3000 new Police Officers. If the Court System is already struggling as too is the Prison and Remand system, it seems to be counterproductive to have more police and therefore more accused – but no corresponding increases in the resources for the Judicial or Penal Systems.
The Criminal Lawyer I spoke to identified Jurisdictional Creep as contributing to the bail problem. In NSW there are three levels of Court. Local, District and the Supreme Court. The Supreme Court handles crimes like murder. Break and enters and robberies are handled by the District Court and minor and petty crimes are dealt with by the Local Court. Jurisdictional Creep happens when the Supreme Court is overloaded and so puts some cases onto the District Court, which then puts some of their cases onto Local Court….which aren’t really in a position to handle those types of cases. So people can be bailed during this creep who shouldn’t be bailed.
The Lawyer went on to say that a serious break in the system that he has observed is the fact that a significant number of offenders have mental health issues and the penal system is so under resourced to handle prisoners with these issues. He said that Magistrates are forced to give them bail for their own protection as they would be exploited in the Prison System. In the case of David Bradford (Gold Coast man who murdered his wife), the Courier Mail (1st February 2017) reports that one of the concerns from the Police was that he was in ‘a fragile mental state and there was an unreasonable risk of causing self-harm or harm to others.’ (And then he was released out on bail).
I have to say, whilst I totally get the Lawyer’s comment and it certainly seems to be true, based on my experience with the very limited mental health resources in Nowra (which has a Prison in it), the Ex Violent Offender, now a Pentecostal Christian and businessman who I interviewed, actually said that a lot of offenders fake mental health issues in order to get bail.
He also said that when he would skip bail interstate, the police and the judicial system of the State that he had fled to, were powerless to do anything about that as it’s only over the most serious of offences that the police will extradite you across State lines. He indicated to me that he was very much aware of this loophole and he played the system accordingly.
His interview (Mr Ex Offender) was very enlightening on the Prison System. Although this blog is focussed on the Bail process, this gentleman was scathing on the whole system: Some of his major points were:
- He believes that the programs that are run in the Prison just help make the criminals smarter criminals.
- He thinks Prisoners play the Prison Chaplains and the Church card in order to get out on Parole through a glowing recommendation from the Chaplain.
- He would like to see harsher punishments for crime. And is a strong ‘truth in sentencing’ advocate.
- He would like to see bigger guarantees being required of the accused before being given bail.
- He said that accused people out on bail, in his experience, use bail to reoffend.
Returning to the Bail system: The Lawyer went on to say that the majority of people who go before the courts will not end up in the Prison system so the courts are reluctant to remand people. He did say that one of the broader issues is that if bail conditions are breached, generally that is only exposed because the police happen upon an offender and then realise that he/she is on bail and is breaching the conditions. In reference to the Gold Coast man who murdered his wife, the Lawyer asked the question:- why wasn’t this man wearing an ankle monitor? He said that GPS technology could be used much more effectively than what it currently is and indeed in a cost effective way to monitor offenders on bail. He said that it was much cheaper to have people out on bail than it is to remand them, which he thinks contributes to the number of people on bail. However, he said with technology, bail conditions of offenders can be easily monitored and picked up. I noted with interest the Courier Mail (3rd February 2017) is reporting that Palaszczuk Government is looking at GPS Technology as part of the Bail Process Review.
I will end this blog here as I am in danger of getting into too much detail. Out of the interviews here are my conclusions on potential fixes for the bail process.
- More accountability for Magistrates for the decisions they make. And/or more accountability of the process that causes a violent reoffender to be given bail.
- Change the fact that there are no afterhours Magistrates. Police operate 24/7, the Court System should too.
- Ditch the Bail Justice system in Victoria.
- The courts need to introduce a centralised system where magistrates making bail determinations can conduct and record a LIVE REAL TIME risk assessment with full access to all current conditions, pending court matters, cross checking addresses, sureties, AVO histories etc etc. Making their decisions off the cumulative facts – not just what the offender tells them in court and police submissions.
- Greater use of technology to monitor those on Bail.
- Greater resources put into Mental Health Services particularly in rural Australia.
- Greater resources put into Judicial and Penal systems so they can match the increasing demands that are arising from more police and more criminals.
- No idea how:- but bridge the gap between the Police and the Judicial System.
- No idea how:- but bridge the gap between the Police and the State Governments…. particularly in Victoria.
- Change the way Magistrates are appointed. Currently they are appointed by State Governments which means that if you have 16 years of Labor in power in NSW, you get many left leaning Magistrates appointed. (Peter Dutton controversially pointed this out regarding the Queensland experience recently). Maybe a better system would be an independent board of retired Judges appoint Magistrates.
- Make it easier to extradite offenders across State lines.
- Become tougher on people who breach bail conditions.
- Empower Sheriffs to enforce bail conditions.
- This is purely my perception and it may be wrong, but a violent repeat offender’s history doesn’t seem to be greatly taken into account when the courts are deciding bail….this needs to change.
- Possibly Federalizing the Judicial System and thus removing all the State based issues.
I hope that has helped you understand where the system is seemingly broken and is failing the community.
We the people of Australia must demand better from our Judicial System.
Anyway, that’s what I think,
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