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Bail review: second advice to the Victorian government

1 May 2017

My first advice was directed largely to legislative reform in accordance with the Terms of Reference. This advice deals with broader systemic issues that arise directly out of the consideration of the operation of the bail system, including Terms of Reference 4 to 7. It also addresses issues that I indicated in my first advice I would deal with.

At the moment, the greatest individual difficulty in the operation of bail and remand matters in the Magistrates’ Court is the failure to produce accused at court, either in person or by audio visual link. The simple cause of this situation is that there are not enough custodial places available in Victoria. One of the difficulties which arises is that prisoners are serving sentences in police cells, including in the Custody Centre at the Melbourne Magistrates’ Court.

The position will be eased somewhat when the new prison at Ravenhall comes into operation towards the end of 2017. However, the issue is unlikely to be completely resolved, particularly as any reforms to the Bail Act 1977 (Bail Act) arising from this Review are likely to increase the number of prisoners on remand.

If prisoners are not produced, then their cases are often put off. Costs may be directly incurred and the need to return to court on multiple occasions can be inefficient and costly. If the case had been able to proceed, bail might have been granted or the matter resolved. It has been well understood for many years that much is to be gained in the criminal justice system by early resolution.

As I discuss in this advice, a very large number of warrants are issued in the Magistrates’ Court each year (about 60,000 in 2016). These warrants are for the arrest of accused who do not answer bail and for those who do not answer summons when the Court is unable to deal with the matter or takes the view that it is inappropriate to do so. It is likely that the predominant majority of those arrested on warrant are either re-bailed or bailed, particularly when the offending is at the lower end of seriousness and would not result in a custodial term.

I recommend that a new process be developed for dealing with these less serious offences. The successful operation of this process will depend on amending the law to allow some indictable offences to be dealt with in the absence of the accused. That is not possible now because an indictable offence can only be dealt with by a magistrate in the presence of the accused and with their consent.

As noted above, a large number of warrants are also issued for accused who fail to answer a summons. A reasonably high percentage of these are for indictable offences at the lower end of the range. Such offences could properly be dealt with in the absence of the accused.

The changes I recommend should reduce the number of people on bail and therefore less warrants may issue as a result of failure to answer bail. Allowing some indictable offences to be dealt with in the absence of the accused should also reduce the number of warrants for cases in which a summons was issued.

If less warrants are issued, then less court time and police time will be taken to deal with those warrants, and less custodial places will be required. That should have some positive effect on the numbers in police cells.

I have looked at the operation of the Court Integrated Services Program (CISP). Even a moderate increase of about 200-300 extra CISP places would take significant pressure away from the remand system. I make a number of recommendations about CISP.

When considering the question of out of hours remand, I discovered that because of the very large numbers involved, there are delays in dealing with cases in the Magistrates’ Court in usual hours. The Court sitting hours end at 4pm, but some magistrates have been sitting until 7.30pm to try and deal with their lists. The disadvantages of this are obvious.

The trial of the Night Court has been limited because of the available resources, including the lack of prosecutors or legal aid lawyers. There is a strong argument to say that a Bail & Remand Court should ordinarily sit from about 9am to 10pm, and I make a recommendation of how this could be done. The Court could deal with many bail applications during these hours (and also finalise some matters) particularly with an increased use of audio visual links.

If that leaves only the period from 10pm to 9am the next morning, it would be possible to give police officers the power to remand adults for that period, and to preserve the bail justice system for children and vulnerable people (who should have immediate access to a bail justice).

I received submissions from the Office of Public Prosecutions (Victoria) and the Commonwealth Director of Public Prosecutions about appeals to the Supreme Court. There are two aspects to this. The first relates to staying a decision of magistrates or judges to grant bail, and the second relates to the test to be applied. Consultation on these issues will be required, particularly in relation to the appeal test.

I make recommendations on the information which should be provided to any bail decision maker.

Finally, the Bail Act does need to be rewritten. It is not a task within my Terms of Reference, but I discuss some aspects that could be reviewed or improved if a rewrite is conducted.

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