Legislative Assembly for the ACT: 2001 Week 8 Hansard (7 August) . . Page.. 2493 ..
Mr Rugendyke: Show it.
MR HARGREAVES: I hear some odd person across the chamber saying, "Show it." The thing is that, if the information is not there to convince a judge to withhold bail, the case is pretty flimsy in the first place. Why do you think it is that it is flimsy stuff? Usually, it is because there are not enough resources out there for the police to do a good job anyway. If members of the police prosecution are not confident that they will be able to convince a judge to withhold bail, to make sure people go into remand instead of being released into the community, then we have a pretty sad and sorry state of affairs, because at the end of the day the person will not be found guilty of anything.
What we have is a police officer saying, "We have charged this person with a second offence and it is a serious offence." I have no problem with denying a person bail under those circumstances. It is the presumption of guilt that I have a problem with. If the police officers want to put to a magistrate a case which says, "This person committed a burglary and we are now charging this person with motor vehicle theft and we think this person should be denied bail," I think it would be rare for a magistrate to say, "No, I will let him go." To do otherwise would be to show a lack of faith in the judiciary, a complete and utter lack of faith in the judiciary. They government is saying, "We have no faith in the judiciary, but we have heaps of faith in the police to decide that."
Mr Stefaniak: The Chief Magistrate raised these points.
MR HARGREAVES: The Attorney-General said that the Chief Magistrate raised these issues. The Chief Magistrate has the power to deny bail on information provided to him by the informant, usually a police officer and quite often the public prosecutor, so why can't that be the case? There is the presumption of guilt. Embedded firmly in this legislation, as in the last piece, is the presumption of guilt or at least the presumption that a person is going to go out and commit another serious offence, but evidence of that is not being provided to the courts. This legislation and its predecessor mean that a magistrate starts from the position that he is not going to give bail when a police officer draws attention to a charge; the magistrate does not even have to look at the circumstances behind it. That, to me, is totally inappropriate.
Most of the members of the community have an enormous amount of faith in and fond regard for our police officers, but there are elements out there that do not. I do not really care too much about those people who will end up before the magistrates, but there is another group. The other group believes that there is a possibility of abuse. I must say that I know no police officer who would be even tempted to go down that track. I would say that the AFP, particularly in the ACT region, has the absolute best reputation across the country for not indulging in this stuff. But there is perception and there is reality. I do not think it is right that we should put this responsibility on the police officers. It is a responsibility that we invest in the judiciary. The members of the judiciary are the people who decide whether someone is going to go to jail and they usually decide that upon the facts presented to them. This legislation and its predecessor mean that they start from the position that someone is going to go to jail and work backwards from there. That is the fundamental flaw behind it.