A number of tragic events in Australia have transformed bail from a rather dry and technical subject only of interest to criminal lawyers to a matter for public concern and even debate. There were three events that received a high level of media reporting. The first in 2012 was the murder in Melbourne of Jill Meagher by Adrian Bayley, a convicted rapist released from prison on parole (Ford 2017). This is technically bail in the Australian criminal justice system. Even though there are significant differences from pretrial bail, there are similar considerations in determining if a person with a history of offending poses a risk to the public.
The second in 2014 was the Lindt café siege in Sydney. Man Haron Monis, who is now often described as a “deranged mad man”, took hostages and when the police eventually stormed the building killed the manager Tori Johnson. A customer Katrina Dawson was killed by a ricochet from a police bullet (Australian Asssociated Press 2017). Mons Monis was on bail, even though he was charged with a serious offence. This resulted in a great deal of media interest and commentary. The third event involved a person with a history of mental illness, Dimitrious Gargasoulas, who ran down people in the main shopping street of Melbourne, injuring thirty people and killing six, including a baby (McKay and Zervos 2017). Gargasoulas had been granted bail, even though he had a record of violent offending.
Although each of these events was newsworthy, the murder of Jill Meagher probably only became widely known because she worked in ABC radio. There have been other cases in which bail decisions have led to murders in Victoria and New South Wales that have received less attention, or were only local news. In Tasmania, there have been recent cases that were not seen as newsworthy outside this small island state. Jodi Eaton was killed by her partner while on bail. He had been charged with an offence of domestic violence (Burgess 2015).
Each of these events resulted in calls to strengthen the bail laws, and in some cases they resulted in legislation and procedural changes. In response to Jill Meagher’s death, an inquiry by former High Court Justice Ian Callinan (2013) recommended higher penalties for breaching parole, and asked parole boards to take greater care. This has resulted in more prisoners being refused parole. The State Coroner in New South Wales (2017) made recommendations on bail decisions and procedures in the Monis case. Following the Bourke Street deaths, Justice Paul Coghlan (2017) was asked to conduct a review about bail practices in Victoria. In Tasmania, there have been proposals to make it more difficult to obtain bail for certain offences, by adapting legislation that already exists in other states.
Although these tragic events understandably receive a lot of attention, at least for a limited period, it would be a mistake to see the problem of bail entirely in terms of soft laws or errors in decision-making. Two other issues are important that are rarely reported or discussed in the media, or acknowledged in legislation. The first is that there has been a dramatic increase in the remand population, as well as the prison population more generally, in the last ten years. In New South Wales, the proportion of unsentenced prisoners in relation to the overall prison population in 2008 was 23.4%, and today it is 33.5%. In Victoria, the proportion of unsentenced prisoners in relation to the overall prison population in 2008 was 19.2%, and today it is 36.3%.1 Victoria has experienced a particularly dramatic rise in the last year: there was a 22% increase in the proportion of unsentenced prisoners in relation to the overall prison population. This is concerning since offending has neither increased nor fallen during the last ten years.2 Although it is hard to estimate given the statistical information available, a significant proportion of this increase has come from more defendants being refused bail.3 We will be arguing that this explosion in incarceration should not be underestimated by governments that are seeking to reduce expenditure, and should not be taken lightly by practitioners and the public, or seen as someone else’s problem.
The second is that there are debates within the criminal justice system about the extent to which offenders should be helped with welfare services at the pretrial stage. A series of initiatives inside courts have, at the very least, demonstrated that there are alternatives to “business as usual” even if they largely remain pilot schemes or cannot secure funding to operate at scale to influence the remand rate. These movements challenge the intellectual justification for existing practices. They have also resulted in a different role for the magistrate, in providing social support to defendants in different ways, even though traditionalists remain sceptical or hostile. One policy initiative, influenced by these ideas, is being implemented in the State of Victoria through the Court Integrated Services Program (CISP ). A substantial number of defendants are being given social support and supervision, and asked or even mandated to attend rehabilitative programs, instead of being remanded to prison. In this introductory chapter, we will supply more substance to these observations and arguments. We also explain how we came to write this book, and outline the objectives and content of each chapter.
Bail Controversies
In Australia, and in other countries, public debate and discussion on bail tends to revolve around whether bail laws are sufficiently restrictive in managing the risks from potentially dangerous or disruptive defendants. In fact, the inquiries following tragic public events often conclude that the laws are already tough enough, and that there was some organizational problem that resulted in a poor decision, or even that this could not have been avoided (Callinan 2013; Coghlan 2017). This will make sense to lawyers who know that such “mistakes” happen all the time (just as patients regularly die through mistakes in hospitals or human services fail to protect vulnerable children). To come to an assessment, it is however important to understand the practical circumstances of the work. In the case of bail tragedies, this is possible to some extent because there is normally a public inquiry that describes what took place, drawing on the testimony of practitioners, and makes recommendations.
In the Jill Meagher case, the offender, Bayley, was given parole after serving a sentence of eight years for sexually assaulting five sex workers. Bayley’s parole had continued even though he had breached the conditions in a violent attack seven months previously on a man outside a pub. Although the full information on how the decision was made is not available, reporters commented on “prison psychologists’ failure to detect that Bayley was … conning them that he had reformed” (Dowsley et al. 2015). A forensic psychologist commented that serious sexual offenders, such as Bayley, learn the correct answers in tests, so more weight should be placed on the “matrix” of circumstances (Marshall and Moulden 2001). In this case, serious sex offences had also been committed while he was supervised on parole but he was not identified as the offender through DNA evidence until after the publicity following the Meagher murder (this is described in the inquiry as one instance of “communication difficulties”). It is not clear how strengthening the law would in itself have prevented Bayley from obtaining parole. One result was that the Victorian government invested greater resources in establishing a full-time parole board with greater resources to improve decision-making.
There is a chapter on bail in the State coroner’s report on the Lindt Café siege. This attempts to explain why Monis, who was on bail for sending threatening letters to soldiers, was subsequently given bail when accused of sex offences against different women, and conspiracy in the murder of his ex-partner. The forensic reconstruction by the coroner should be read in full, since any summary will miss important details. It is still, however, worth giving a simplified summary here. The coroner felt that the submissions of a solicitor working for the Director of Public Prosecutions (DPP) on a bail application in November 2013 (when charged with being an accessory to murder) were inadequate. This was partly because there was only an oral argument, whereas the defence had provided full written submissions. Another error was that the prosecutor did not mention that Monis was on bail for the postal offences, as he did not have access to this prior history. A third error was that the court employed the wrong legal test, but this was not challenged by the prosecutor.
The next error happened when junior police officers raised concerns about the outcome within the police, but did not supply sufficient detail on an administrative form to enable a senior officer to recommend an appeal. A fifth error took place in a bail application made in April 2014 when Monis was charged with sexual assault charges on women who came to him for “spiritual healing”. He was able to show that he had been on bail for four years on the postal charges, although no one noticed that the alleged offence of conspiracy to murder had taken place while on bail. A sixth error occurred in October 2014 when the police had obtained evidence to charge Monis with more sex offences. There was a decision by the police to issue a summons rather than making an arrest (a choice that might have changed the subsequent decision to continue the bail). The prosecutor took the view that the increased number of charges did not lead to a greater risk of not meeting bail. He agreed that there was an “unacceptable risk” but this could be mitigated by conditions such as reporting to a police station. On 15 December, while still on bail, Monis entered the café with a shot gun.
Although the bail law in New South Wales, already subject to political debate, was subsequently strengthened, the coroner’s report did not suggest that the law, at that time, was responsible for Monis obtaining bail despite being charged with three serious offences. Instead the report identified a series of minor human errors. Some could be described as correct or defensible decisions that look different in hindsight. Reading between the lines, others appear to ...