Bail presumptions

10.8 A person arrested for an offence related to family violence may be released on bail, either by the police or the court. This could be dangerous for a victim of family violence. Special bail laws have been enacted that might ‘tend to counteract the prevalent civil libertarian bias and reverse the onus in general bail legislation towards releasing an arrested person on bail’.[19]

10.9 There are three broad ways a bail presumption can operate: there can be a presumption for bail; a presumption against bail; or no presumption either way. Because there is generally a pre-existing general presumption for bail, one option is often referred to as ‘removing the presumption in favour of bail’—but this has the same outcome as the no presumption option.

10.10 Presumptions in favour of bail are displaced in New South Wales (NSW) for family violence offences and breach of protection orders in circumstances where the accused has a history of violence; has previously been violent to the victim of the alleged offence in the past or has failed to comply with a protective bail condition.[20] Presumptions in favour of bail are also displaced in certain family violence circumstances in Victoria,[21] the ACT,[22] and the Northern Territory (NT).[23]

10.11 For police bail, in the ACT, there is a presumption against granting bail for family violence offences. The Bail Act 1992 (ACT) provides that police must not grant bail to a person accused of a domestic violence offence unless satisfied that the person ‘poses no danger to a protected person while released on bail’.[24]

10.12 The South Australian family violence legislation amends the Bail Act 1985 (SA) s 10A to include a presumption against bail for certain family violence offences involving physical violence or the threat of violence.[25]

10.13 The family violence legislation of Tasmania provides that a person is not to be granted bail unless a court, judge or police officer is satisfied that the release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child.[26] The 2008 review of Tasmanian family violence legislation noted that a number of stakeholders expressed concern that ‘the Act weighs against the rights of the accused’. The most criticism

was levelled at the bail provision s 12(1), and that the onus of proof to grant bail is effectively reversed by the operation of the Act. It should be noted, however, that there is a presumption against the granting of bail where there is a history or threat of domestic violence in most Australian jurisdictions.[27]

10.14 The review noted that s 12 has attracted criticism in the Supreme Court of Tasmania[28]—criticism illustrated by Justice Underwood, who has written:

It is one thing to take into account the safety, wellbeing and interests of an affected person or an affected child, it is quite another to refuse liberty unless the defendant discharges the onus of proof cast on him (or her but it is invariably him) by s 12(1).[29]

10.15 There are no provisions in the Bail Act 1980 (Qld) that cater specifically for family violence cases.[30] The Bail Act 1982 (WA) restricts the jurisdiction to grant bail in respect of breaches of protection orders in urban areas.[31]

Submissions and consultations

10.16 In the Consultation Paper, the Commissions asked whether in practice the application of provisions that contain a presumption against bail, or displace the presumption in favour of bail, in family violence cases, struck the right balance between ensuring the safety and wellbeing of victims, and safeguarding the rights of accused persons.[32] The Commissions also asked about the presumption against bail in the Tasmanian family violence legislation.

10.17 Some submissions said the balance was right, without expressing a preference for either a presumption against bail or for no presumption.[33] Others provided specific comments in relation to these options. Some stressed that bail should be a matter of judicial discretion.[34]

No presumption

10.18 Some stakeholders submitted that the balance was best struck by removing the presumption in favour of bail—that is, by having no presumption either way.[35] Professor Julie Stubbs considered that this ‘should draw the attention of the bail decision makers to the need to give this due consideration without unduly limiting their discretion’.[36] The Local Court of NSW submitted that this would ‘strike the right balance’, because:

The onus is placed upon the accused person to show why a grant of bail is appropriate, and the Court is often able to craft conditions around the need for the protection of the victim. Bail conditions will often be reflective of the conditions of a protection order.[37]

10.19 The Magistrates’ Court and Children’s Court of Victoria submitted it was not aware of any cases that suggest the balance was not right in the Bail Act 1977 (Vic) (in which the presumption in favour of bail is displaced for stalking and contraventions of protection orders involving violence or threats of violence). However, the courts submitted, legislation may provide better protection for victims

if provisions of this nature were not limited to contraventions of intervention orders and included a set of principles to be applied in deciding all bail applications arising from family violence offences.[38]

Presumptions against

10.20 Some stakeholders said they supported a presumption against bail for family violence offences.[39] For example, the Domestic Violence Prevention Council (ACT) considered that this provided better protection for victims:

There are too many circumstances where the rights of the accused person have been favoured above those of the victims and the safety of the victims has been compromised. There are many examples of this nationally, some of which have resulted in the murder or murder/suicide of families. We have found in the ACT that the operation of the presumption against bail has effectively worked to protect victims without unnecessarily prejudicing the accused.[40]

10.21 Women’s Legal Service Victoria commented that safety concerns were especially important in a family violence context. It supported a presumption against bail, in light of the risk of offenders returning home and using more violence ‘at a time where the risk of violence is higher as noted by various post separation articles and studies’.[41]

10.22 The Wirringa Baiya Aboriginal Women’s Legal Centre also supported a presumption against bail and commented in particular on the implications for Indigenous women:

While there is a justifiable concern in the Aboriginal community about the numbers of Aboriginal people in custody, we speak to many Aboriginal women who are upset about offenders of family violence being given bail.[42]

10.23 For other stakeholders, however, a presumption against bail had various dangers. Criminal law lawyers at National Legal Aid said it would unduly compromise the rights of accused persons.[43] Further, a number of submissions stressed that a presumption against bail might act as a disincentive for victims to report offences.[44] One women’s legal service said that except in extreme cases and repeat offences, ‘it would usually be in the best interests of the whole family for the accused to remain in their employment’.[45]

10.24 The North Australian Aboriginal Justice Agency (NAAJA) submitted that if there were a presumption against bail, first-time offenders and persons who have committed ‘relatively trivial family violence matters, such as contacting the protected person by email or text message’ would be refused bail.[46] The agency suggested that the criteria in sections 24 and 26 of the Bail Act 1982 (NT), coupled with appropriate bail conditions, strike the right balance and it ‘would not support any further tightening of bail provisions in relation to breaches of domestic violence orders’.[47] NAAJA was particularly concerned about any proposal to introduce a presumption against bail whenever someone is charged with breaching a protection order, and noted the practical difficulties that could ensue:

it is impossible to determine at the bail stage of proceedings the circumstances of the offence including its nature and seriousness and the strength of the prosecution case. Given that most family violence matters are decided on ‘oath on oath’ evidence, the strength of the case generally falls on the performance of the witnesses at hearing. The needs of the person to be free to prepare for his appearance in court, obtain legal representation, and be free for any other lawful purpose is a serious consideration for the court.[48]

10.25 NAAJA also warned of the ‘extreme injustices that can arise from overly punitive bail provisions’, for example in the cases of:

(a) those pleading not guilty to breach domestic violence order charges who may feel compelled to plead guilty to avoid lengthy remands in custody following refusals of bail, or (b) those who assert their innocence and are refused bail and spend several months remanded in custody pending hearing (when they may subsequently be acquitted or not sentenced to a term of imprisonment that equates to the time they spent on remand).[49]

10.26 Regarding the prohibition in the ACT on police granting bail for domestic violence offences ‘unless satisfied that the person poses no danger to a protected person while released on bail’, National Legal Aid submitted that this:

can sometimes lead to injustice because it seems police are reluctant to make a decision in relation to bail preferring to leave it to the Court to decide. This has resulted in children who exhibit challenging behaviours being refused bail by police.[50]

Presumption for

10.27 The Law Society of NSW was opposed to the erosion of the presumptions in favour of bail, which it said ‘usually follows an horrific case and is often more a politically charged reaction to public opinion than a carefully considered response’.[51]

10.28 In Queensland, the presumption in favour of bail is not removed for family violence offences. The Queensland Government submitted that the:

legislative framework of the Bail Act 1980 provides protection to victims as well as upholding the presumption of innocence for people charged with offences.[52]

10.29 The Queensland Law Society also did not think the Queensland test needed to be changed. These alleged offenders usually comply with bail conditions, it submitted, because, unlike many acts of family violence, a breach of a bail condition will almost certainly result in imprisonment.[53]

The Tasmanian legislation

10.30 In the Consultation Paper, the Commissions expressed an interest in hearing about whether the presumption against bail in Tasmania should be modified or narrowed.[54] National Legal Aid submitted that ‘in practice the presumption does not actually reverse the onus of bail, it requires the courts to be satisfied about the victim’s safety and where this is the case the offender will be bailed’.[55] This approach, it said, ‘adequately reflects the complexities of family violence, and the degree of risk to which a victim can be potentially exposed’.[56] National Legal Aid also discussed the experience in practice of the application of the presumption, noting that though s 12 of the Tasmanian family violence legislation initially led to a large number of offenders being remanded in custody where they otherwise would not have been, this is no longer the case.

The factors, which a court is able to take account of, are not limited, and allow for the exercise of discretion by the court. Tasmanian Supreme Court decisions and continuing application of the section by the Magistrates has continued to guide court decisions in relation to bail. This has led to a considerable change in the court’s approach to bail decisions and a decrease in offenders being detained without good cause. Courts are requiring reliable material on which to base their decisions, and flexibility to respond to the circumstances of the case …

In the north of Tasmania it appears that such factors as the willingness of the victim to take part in proceedings, the seriousness of the offending, and the history of the violence between the parties for example are properly being examined in the application of s 12. The effect of this is that it is rare for offenders to be locked up in situations where victims are, for example, unwilling to give evidence in relation to the criminal charges.[57]

Commissions’ views

10.31 Crimes related to family violence are unlike many other crimes. For one thing, they are more likely to have a history—perhaps a long history—of fear, coercion and control. Where a crime is committed in the context of family violence, the accused will know the victim; he or she might often want to return to the victim; the victim and the accused may have had children together; the victim and the accused might live in the same home. All these factors suggest that a person who has committed a crime in the context of family violence might, if granted bail, be more likely to see the victim—and so endanger the victim—than a person accused of a crime against a stranger. When granting bail, judicial officers must therefore be alert to the importance of providing for the safety of victims and related children.

10.32 The Commissions do not, however, consider that the safety of women and children is best secured by creating a presumption against bail for all crimes committed in a family violence context. If, as some have submitted, a presumption against bail acts as a disincentive to victims to report family violence crimes, then the presumption might sometimes indirectly undermine the safety of victims. Some victims will also not want alleged offenders incarcerated—this appears to be of particular concern to some Indigenous persons. Furthermore, a presumption against bail for all family violence offences appears to deny unfairly the accused the presumption of innocence.

10.33 A presumption against bail also seems inappropriate for some crimes in a family violence context. Without diminishing the seriousness of any type of breach of a protection order, it would seem that a breach of a contact condition of a protection order that does not involve any family violence, particularly where the protected person invited the contact uncoerced, might not justify a presumption against bail.

10.34 For these reasons, the Commissions do not support presumptions against bail for all crimes committed in a family violence context. This is not to say that there should not be a presumption against bail for some family violence crimes, such as murder.

10.35 The Commissions note National Legal Aid’s submission that the Tasmanian courts’ approach to s 12 of the Tasmanian legislation has changed and that fewer alleged offenders are now being detained without good cause. However, in the Commissions’ view, and for the reasons outlined above, the Tasmanian legislation does not seem to strike the right balance between protecting victims and giving an accused the presumption of innocence, particularly as it might create a presumption against bail for economic and emotional abuse. The Commissions therefore recommend that it be amended.

10.36 In the Commissions’ view, the balance is best struck by generally maintaining a presumption in favour of bail—consistent with the presumption of the accused’s innocence—but removing the presumption in favour in certain specific circumstances. The Commissions make no specific recommendation about what those circumstances should be, but suggest that they would include, for example, where an accused has been violent against the victim in the past—as is the case in NSW.

10.37 The Commissions are also somewhat concerned with the ACT provision that provides that police must refuse bail for domestic violence offences ‘unless satisfied that the person poses no danger to a protected person while released on bail’—particularly if police do not try to ascertain whether the victim will be in danger, but simply leave the decision to the court. Persons might then be incarcerated unnecessarily in the period between arrest and when the court hears the matter.

Recommendation 10–1 State and territory legislation should not contain presumptions against bail on the grounds only that an alleged crime occurred in a family violence context.

[19] Thomson Reuters, The Laws of Australia, vol 17 Family Law, 17.5, [28] (as at 7 January 2009).

[20]Bail Act 1978 (NSW) s 9A.

[21]Bail Act 1977 (Vic) s 4(4)(b), (ba) (stalking and contraventions of protection orders involving violence or threats to use violence). The Victorian Government is now considering and implementing parts of the Victorian Law Reform Commission’s 2007 review of the Bail Act: Victorian Government, Submission FV 120, 15 June 2010.

[22]Bail Act 1992 (ACT) s 9B (breach of a protection order, if the person has in the previous 10 years been found guilty of an offence involving violence or the threat of violence).

[23]Bail Act 1982 (NT) s 8(1)(aa) (breach of a protection order where accused found guilty in preceding 10 years of specified offences, including serious offences).

[24]Bail Act 1992 (ACT) s 9F. Protected person means a person against whom the alleged conduct making up the offence was directed and includes any other relevant person in relation to the accused person: s 9F(6). Also, s 14 provides that an authorised person must not grant bail to person accused of the family violence offence of murder. Courts must not grant bail to a person accused of murder, ‘unless satisfied that special or exceptional circumstances exist favouring the grant of bail’: s 9C.

[25]Intervention Orders (Prevention of Abuse) Act 2009 (SA) sch 1.

[26]Family Violence Act 2004 (Tas) s 12. ‘Affected person’ is defined in s 4 to mean ‘a person against whom family violence is directed’. Section 12 also sets out factors which a court must consider in making a bail decision, including the availability of suitable accommodation for the victim and any affected child.

[27] Urbis, Review of the Family Violence Act 2004 (2008), prepared for the Department of Justice (Tas), 15.

[28]Re S [2005] TASSC 89; S v White [2005] TASSC 27; Olsen v Tasmania [2005] TASSC 40.

[29] Urbis, Review of the Family Violence Act 2004 (2008), prepared for the Department of Justice (Tas), 15.

[30] Thomson Reuters, The Laws of Australia vol 17 Family Law, 17.5, [32] (as at 7 January 2009).

[31]Bail Act 1982 (WA) s 16A(3). See also sch 1, pt C, cls 3A, 3B (presumption against bail where serious offence committed while accused on bail for another serious offence unless exceptional circumstances; in deciding whether there are exceptional circumstances in cases of breach of a protection order, there is an obligation on the judicial officer to give the person for whose protection the order was made an opportunity to give evidence on matters relating to the protection order).

[32] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Question 5–13.

[33] Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010; Police Association of New South Wales, Submission FV 145, 24 June 2010; N Ross, Submission FV 129, 21 June 2010.

[34] Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010.

[35] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[36] J Stubbs, Submission FV 186, 25 June 2010.

[37] Local Court of NSW, Submission FV 101, 4 June 2010.

[38] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[39] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010.

[40] Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010.

[41] Women’s Legal Service Victoria, Submission FV 189, 25 June 2010.

[42] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[43] National Legal Aid, Submission FV 232, 15 July 2010.

[44] J Stubbs, Submission FV 186, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; A Cannon, Submission FV 137, 23 June 2010; Confidential, Submission FV 109, 8 June 2010.

[45] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[46] North Australian Aboriginal Justice Agency, Submission FV 194, 25 June 2010.

[47] Ibid.

[48] Ibid.

[49] Ibid.

[50] National Legal Aid, Submission FV 232, 15 July 2010.

[51] Law Society of New South Wales, Submission FV 205, 30 June 2010.

[52] Queensland Government, Submission FV 229, 14 July 2010.

[53] Queensland Law Society, Submission FV 178, 25 June 2010.

[54] Consultation Paper, 263.

[55] National Legal Aid, Submission FV 232, 15 July 2010.

[56] Ibid.

[57] Ibid.