Legislative Assembly for the ACT: 2003 Week 14 Hansard (9 December) . . Page.. 4976 ..
MR STEFANIAK (continuing):
terribly well and probably have not since the time I appeared in them here in 1979 is the forfeiture of sureties.
A surety is basically a promise signed on a piece of paper, but sometimes there is a cash surety, that is put to the registry of the court to ensure that an accused turns up. Sometimes the surety is self-surety by the accused, the defendant, and sometimes a surety is also needed from a wife, husband, parent or whatever. Invariably, perhaps too often in our court system, that has often just been the signing of a piece of paper promising to turn up and having an arbitrary amount set-$1,000, $500 or $5,000-but quite often no action is taken in relation to those sureties when there is a breach of bail. The surety is not forfeited: an excuse is given and often the surety is reissued. I must say that I have known of occasions when action has been taken.
I would commend an effective practice in New South Wales when I was practising there-admittedly, that only goes up to about 1990 or so-whereby cash would be put down and, if the defendant did not turn up and no special reason was given for not doing so, the money would be forfeited. That is a great way of concentrating the mind. It is a great way of ensuring that the defendant who puts up the money will turn up. Secondly, if some other individual is prepared to go surety-meaning that they have put themselves in the position of being responsible for ensuring that the defendant will turn up and stand to lose money if that person does not turn up-they are going to make a much bigger effort to ensure that the defendant turns up if they know the court is actually going to enforce the forfeiture of the surety. I have found from practice that cash sureties are a very good way to go.
I think that it is important to tighten the areas around the forfeiture of sureties. It is something that I do not think our system has done terribly well. Word soon gets around that, if you do not turn up and you do not have a particularly good excuse, you will get your surety back and off you can go again. I think that is an area we need to tighten up. The usual thing when someone does not appear on bail is for a warrant to be issued and the police to have to go out and arrest them. If the case is down for hearing, you often have witnesses who have turned up at court ready to go and a lot of money has been expended by the authorities and often by the defence itself to get people there. If the defendant does not front up you have a very serious situation. It is something that has been taken too lightly in the past. I hope that the government is doing something in relation to that.
Finally, the Law Reform Commission has recommended that it be made an offence to breach bail conditions. The government does not support that. I think that that is a shame. The commission was headed by, I think, Mr Justice Crispin and made these recommendations after much deliberation, coming to the unanimous conclusion that it should be made an offence to breach bail conditions.
Bail is a very serious matter, especially if someone is charged with a serious offence. If they are given bail, they really should appreciate that fact. Yes, normally it does make it easier to conduct a defence and things like that, but they have been given their freedom, effectively, until the case is finalised. To breach a bail condition is a very serious matter and I do think that it should be an offence. I cannot agree with the government there. I await with interest what the Chief Minister will bring in on Thursday. This is an area of great concern to the community.