Page 135 - Week 01 - Thursday, 9 April 1992
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BAIL BILL 1992
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (10.55): Madam Speaker, I present the Bail Bill 1992.
Title read by Clerk.
MR CONNOLLY: I move:
That this Bill be agreed to in principle.
This Bill is very similar to a Bill which I presented to the last Assembly but which was not debated before the Assembly rose on 17 December 1991. Since that time the Bill has been finetuned. The majority of the changes made are technical, but there are a couple of significant changes which I will mention later.
Madam Speaker, it is a fundamental tenet of our common law tradition that a person is presumed innocent until proven guilty by due process of law. A considerable time may elapse between a person's arrest and final conviction or acquittal. Keeping an unconvicted person in custody for extended periods is inconsistent with the presumption of innocence, particularly if that person is eventually acquitted.
Bail is a mechanism to allow a person to go free at times when he or she is not actually required to be in court. Being in custody seriously prejudices an accused. The report published in 1976 of the Bail Review Committee of New South Wales identified the following factors: An accused who is held in custody is more likely to plead guilty; more likely to be convicted if he or she pleads not guilty; and more likely to be sentenced to a gaol term if convicted.
Also, while in custody, an accused is not earning any income and may even be sacked if remand lasts for more than a few days. This will probably mean that his or her family will have to go on social security benefits and may be unable to meet loan or mortgage repayments. This outcome is unacceptable for a person who is unconvicted and therefore presumed innocent.
More importantly, it is difficult, if not impossible, to prepare an adequate defence while in custody. To prepare a defence, you need free access to your lawyer and free movement to find witnesses and prepare evidence. The rules and regulations which are necessary for the effective running of a remand centre impede this.
On the other hand, Madam Speaker, the community has a legitimate expectation that an accused person will stand trial and that the course of justice will not be obstructed. An accused person may justifiably be held in custody pending trial if he or she is likely to abscond or interfere with evidence or intimidate witnesses.
Under the present law in the Territory, bail is a type of security under which the accused usually undertakes to appear in court under pain of forfeiting a specified sum of money. The accused normally has to provide a guarantor to the undertaking as well, who also stands to forfeit a sum of money if the accused fails to appear in court on the appointed day. This person is called a surety. Originally, the surety was a kind of personal gaoler; but that function has long been extinct, although the surety's right to arrest the accused without warrant remains. The Bill will abolish that right, because it is no longer appropriate in today's society, and will confer substitute powers on the police.
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