“Much can be done to improve remand. The government should be seeking to do so. It is also a good idea to review the adequacy of the suite of bail conditions and their management. Unfortunately, the attorney-general’s proposals do not go that far.” HUGH SELBY takes deep dive into the state of bail laws in the ACT.

In a  recent media release, ACT Attorney-General Tara Cheyne, correctly noted that our bail law (not reviewed in 20 years) is a risk assessment framework.

She wants an up-to-date framework that reflects, “the interests of the victim… the accused… community safety and justice integrity”.

Note the order of those interests because it matters. A red flag is flying.

Whatever the order of interests, and whatever the criteria for granting bail, the immutables are that following an arrest the community wants to be sure that the defendant will appear for their trial, and that before that date the community and any claimed victim will be free from fears of further criminal conduct by the defendant.

Locking up the defendant (remanded) is a sure way to realise those aims. It is, however, expensive, and it as good as assumes the guilt of the defendant. 

The level of risk from releasing the defendant (bail) can be managed by the availability of appropriate conditions with which the defendant must comply. Those conditions can be established within bail law. 

No conditions can be perfect. There will always be people who re-offend while on bail. Remand, too, is not perfect. It is a violent, soul destroying environment.

Much can be done to improve remand. Our government should be seeking to do so. It is also a good idea to review the adequacy of both the suite of bail conditions and their management. Unfortunately, the attorney-general’s proposals do not go that far.

The bail process

An arrested person must be brought before a magistrate so that their continued detention or release is decided as quickly as possible. On weekdays bail applications are the first order of business. We have a Saturday morning bail court that deals with those arrested on Friday evenings. Those arrested from Saturday afternoon must wait until Monday for a chance to be heard.

Liberty is precious, not just to the individual but to our collective spirit. (That spirit, alas, does not extend to refugees, non-citizens, and too many indigenous people). 

This used to mean that there was a presumption in favour of granting bail. If the prosecution wanted a person to be remanded in custody then the onus was on them to show the need for it.

Progressively, that approach has been whittled away so that there are now situations in which there is an onus upon the arrested person to show why they should be released.

Despite those changes there are many cases in which a magistrate will grant bail with “standard” conditions, reflecting the combined experience of magistrate, prosecutor and defence. 

However, when an application for bail is made within hours or days of arrest and is opposed by police/prosecutors, there has been no non-police assessment of the strength of the evidence against the arrested person. The case reflects a police investigation of unknown quality – possibly watertight, possibly seriously flawed, and everything in-between. The strength of the evidence is a factor in bail hearings, but it is often not assessable at a first court appearance.

It is for that reason that it will be reported in the media that at a first court appearance for a person arrested for a serious charge there is no application for bail, and no indication of whether there will be a plea of guilty or going to trial.

In some serious cases, such as a charge of murder or involvement in a proposed or actual terrorist act, an accused will not be released before their trial (save in exceptional circumstances that need not be considered now). They are “remanded in custody” from arrest to trial.

In other cases where bail is opposed, competent defence lawyers often delay applying for bail until they have reviewed the police case against their client sufficiently to advise their client whether an application for bail will be successful, is hopeless, or is arguable. 

That delay may be days or weeks. Just how long reflects such factors as when the police provide full details of their case to the prosecution (which then gives a copy to the defence), defence lawyer competence and workload, and the client’s capacity to pay for the application, if not a client of Legal Aid.

Meantime, the client sits out at the Alexander Maconochie Centre (AMC) or in youth detention, separated from the convicted prisoners, fiddling their thumbs and going stir crazy for lack of anything to do. We will return to this sad, and unnecessary state of affairs later. 

The discussion paper

The government has published a discussion paper (paper) about possible changes to our bail law. It can be found here. The paper includes a good introduction for those not familiar with how the bail law works. 

To better assess what changes to the law could improve bail decisions It helps to understand that:

• The current law already requires the prosecutor to tell the court about any concerns that an alleged victim has about further harassment or violence. There is a possible issue about whether the ambit of those people “needing to be considered” should be widened.

• Conditions can be imposed upon a person who is given bail. These conditions include reporting in person at set intervals (such as daily, weekly), where they are to reside, attending medical/psychiatric treatment, and taking part in a program of “personal development, training or rehabilitation”.

This last condition has often been used for those who are alcohol/drug dependent. Successful completion of a program can then be taken into account in their sentencing because it shows a capacity to change for the better. 

In NSW there was a condition imposing curfew hours when giving bail. Whether this is still done I do not know; however, some police used it as an excuse to harass bailed defendants and their families by knocking on the door in the wee hours and demanding that the person show themselves to police. Keep this mind when we consider whether it should be police who monitor bail conditions.

• The surrendering of any passports is a common condition of bail.

• There is also provision for the payment of money (actual payment or promise to pay) which will be forfeit if the defendant fails to appear in court. This is known as a surety. A parent, parents, partner, among others, can be a surety, but an accused’s lawyer cannot be.

The paper asserts with respect to the “red flag list of interests that starts with victims” that “there is no hierarchy of those interests; no consideration is to supersede another”. Respectfully, this is specious. By way of analogy, when adults talk about a full course meal they go from entrée to main to dessert, with good reason. The child, however, is likely to start with dessert. Their hierarchy is obvious.

In this discussion paper it is just as obvious: questions 2-6 are all about expanding the ambit of victimhood.

There are then other questions that take about seven pages to explore. The best way to characterise them is as interesting and relevant, but presented without context, which makes it impossible to assess their value. 

To ask the community to comment on bail changes in a context-free zone is rather like asking someone to comment about the suitability of an entrée for a multi-course meal. On its own the entrée may seem enticing; however, without knowledge of the rest of the meal it is impossible to offer useful comment on how appropriate it is.

Wilful blindness makes for poor policy

On the ACT government’s Your Say online page (here) there is more detail about the government’s intentions.

That detail makes the independence and discretion of bail decision makers (who are police watchhouse staff, magistrates, judges) secondary to the government wanting to “provide greater clarity”. I think that is “double speak” for “forget about experience and what works. Do it our way, our victim (until shown otherwise) priority way”.

There then follows on the Your Say page this gobsmacking assertion (which I will “interpret” after you have tried to fathom its intent): “Notwithstanding the intersectionality and relevance of resources, investments, and supports that are otherwise outside this reform’s scope, particular regard is given to these further objectives:

• Enhance confidence and trust in the justice system;

• Reduce the high rates of remand and recidivism; and

• Address the significantly high rates of incarceration of Aboriginal and Torres Strait Islander people.”

Here is my interpretation: 

1. We just want to change the words of the bail law (because that’s good politics and doesn’t have immediately obvious budget costs) and leave it to the courts to deal with the consequences;

2. We know that bail law is just one part of our system of criminal justice. As such it is tied to the other parts, such as preparations for a final hearing, time between arrest and trial/sentencing, adequate funding to supervise those released on bail until their hearing, what services – such as physical and mental health, education programs, family visits – are to be offered to those who are kept in custody until their hearing. 

We know that, but we want to pretend, and you community minded people looking to comment on Your Say are also to pretend, that these links don’t matter to what we want to do; 

3. We pay phony lip service to reducing high rates of bail refusal, and the failure of prison time to “rehabilitate” prisoners. It’s phony for these two reasons:

• a simplistic victim-focused approach will lead to more, not fewer people in custody; and,
• in the history of our jail this government has shown no interest, none at all, in rehabilitation programs; and

4. Although we couldn’t care less about indigenous people (just look at our record of nothing of substance) we want you to think that we do.

We can, and we should do so much better

It cost $618 a day in 2023-2024 per “remanded in custody” person in the ACT. Under our present bail law, up to half of the AMC population are remandees at an annual cost of $40 million.

Given that this is nothing more than “warehousing with food”, it is money being thrown away. Why not spend that money for much better outcomes?

If our government is serious about improving our criminal justice system to the benefit of victims, defendants/accused, and the community then it needs to take a whole-of-system approach, not a piecemeal one.

Time spent on remand reflects the efficacy of our criminal justice system. The longer the time the poorer our system.

Approaches to improvement should take account of the following:

Quick route to sentencing

Most criminal cases are dealt with by guilty pleas. Only about 10 per cent are defended.

All criminal law specialists can find up-to-date information on comparable sentences. This means that defendants who plead guilty are likely to be told the likely range of a sentence by their lawyer.

Pleading guilty before a trial attracts a discount – the sooner the plea of guilty is made the greater the discount.

The chances of success on a not guilty plea vary from one crime type to another; however, assume that around half of those defendants who spin the wheel of fate lose, are found guilty and sentenced. They get no discount.

Jail is a last resort option. Suspended sentences, and sentences that keep the offender out of jail but require them to be supervised, are commonplace.

Too often people are kept in remand for months while waiting for their matter to be heard. If they plead guilty then that time counts when imposing a sentence. But for those who are acquitted then they have been “wronged” by being kept in custody. No compensation is payable.

Given that the bulk of criminal law justice is sentencing, then the system should facilitate the early plea of guilty, quick preparation of useful pre-sentence reports, and early scheduling of sentencing hearings.

Hand over the management of bail conditions to Corrections

The time-honoured practice is that those on bail who need to “report” do so at police stations.

The paper reports that there is now a pilot project in the ACT for some bailed indigenous to report to places other than a police station. Hallelujah!

We train our police to investigate crime, not to act as welfare officers/ mental health nurses. Police involvement in the lives of a bailed person should be limited to investigating alleged breaches of bail.

In their place there should be trained staff in Corrections that handle all aspects of bail conditions that apply to a bailed person. Community Corrections are already responsible for preparing pre-sentence reports and supervising offenders who are sentenced to supervision or who have been paroled. Much of that training can be applied in the management of bail conditions. 

Given the prevalence of disadvantage among those charged with crimes, providing them with empathic, insightful supervision can better equip them to achieve crime-free lives. The cost will be a fraction of that spent to keep them behind wire, doing nothing. 

Provide a range of therapeutic services and activity options to those kept on remand and keep them safe.

The dearth of services offered to ACT remandees is a disgrace. There is no excuse. There needs to be a wide range of high-quality medical and psychiatric services on offer, together with the chance to learn new skills and to earn some income.

For those, in the government and elsewhere, who don’t understand: being kept on remand is a deprivation of liberty, nothing more. It is not a punishment.

A separate issue is that remandees need to be safe from other prisoners, staff, and police. 

Here is an example, from an Australian remand prison, but not the ACT. Several young men, all with no criminal record, were charged with murder and refused bail. The investigating police decided that to secure any convictions it was necessary to “turn” one of the group, to give him immunity from prosecution in exchange for becoming a prosecution witness.

They brought the target’s mother and girlfriend to the remand prison late one night. It was not during visiting hours. It was explained to all that if the young man declined to accept the offer then he was likely to be frequently buggered. Mother and girlfriend persuaded the target to make the right choice. 

Adequately resource the courts to deal with any backlog in hearings

What is the current wait between arrest and trial in the ACT for both Magistrate and Supreme Court matters? We have no right to a speedy trial; should we?

On November 20 2024 The Canberra Times reported an indefinite wait for many cases in the Supreme Court. Nearly all cases listed to get a trial date in the Supreme Court were at least a year old.

An experienced criminal law practitioner noted that what was once a one year wait could now be an extra year. 

The latest online available Review of the Supreme Court covers 2022-23. The graph and table for outstanding criminal matters shows that percentage-wise those matters waiting less than 12 months dropped from 87 per cent in 2013/14 to 59 per cent in 2022/23. Those waiting more than two years increased in the same period from 4 per cent to 18 per cent.

Another table headed “Summary Data” shows that between 2015/16 and 2022/23 the clearance rate dropped from 94 per cent to 63 per cent.

What I cannot share with you – because I couldn’t find it – is data on how long remanded accused are waiting for trial in the ACT. That’s important data and it should be readily available.

The most recent Magistrates Court Annual Review was too long ago to be useful.

Each and all of the government, the courts, Corrections, lawyers working in criminal justice, and the community need to know what is the time frame (from current minimum to current maximum) for remandees awaiting a final hearing in the Magistrates Court or a trial in the Supreme Court.

There also needs to be an informed consensus about what is a reasonable time so that the courts have sufficient judicial officers to ensure that the waiting time for a trial does not exceed that time limit.

Readers should keep in mind that the best defence for a guilty person who is pleading “not guilty” is often delay, because memories fade and witnesses can’t be found. But the other side of that coin is that innocent people who are pleading “not guilty” usually want a trial tomorrow so that they can get on with their lives.

Those who are innocent and those who are real victims both share a wish that the criminal justice system works quickly to finalise cases.

Would the current delays be reduced if one or more of the following occurred: more magistrates/judges; more court direction in getting matters ready for trial; requiring the ACT to contribute to the legal costs of successful accused in the Supreme Court; better trained and remunerated Legal Aid lawyers; and, closer working links between police and prosecutors?

It’s actions, not words, that count

Of course, if we are going to have speedy hearings, and speedy sentences for those who plead guilty or are found guilty, then we need to know that those sentenced are going to have real opportunities to be rehabilitated.

A whole-of-criminal-justice approach looks to the end game from the get-go. If the system fails those who are sentenced by doing little or nothing to provide the chance for rehabilitation then we are all losers.

And that is what we are in the ACT: losers.

Those sent to the AMC – whether as remandees, prisoners, or both – don’t get services. Their environment is one of corrupt dealings, misconduct and ignoring the Corrections Management Act.

At CityNews we have reported that reality repeatedly. The government stays silent. 

It is that silence, combined with their blinkered approach to updating the bail law, that tells us that they are not fair dinkum about doing anything that would allay the problems of a criminal justice system that is in crisis.

Our criminal justice system, and each of its parts, should offer much more predictability and value than the random outcomes from spinning the Wheel of Fortune.

Would the attorney-general and her colleagues like a risk assessment? 

Hugh Selby is a CityNews columnist, principally focused on legal affairs. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.