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Percy, Tom --- "Editorial: Bail: slipping through the net" [2017] PrecedentAULA 51; (2017) 142 Precedent 2

BAIL: SLIPPING THROUGH THE NET

By Tom Percy QC

If you were to ask any lawyer practising in the area of criminal law which cases are the hardest to win, you’d probably be surprised by the answer.

While the homicide cases, drug cases and child sexual abuse cases all present their challenges, the most difficult ones are serious bail applications.

Not the routine ones, where the parties agree that bail is appropriate, but the highly contentious ones. Those cases where the accused person is already on bail for another serious offence or offences.

In most Australian jurisdictions, the applicant needs to demonstrate exceptional circumstances before a judge or magistrate can even consider releasing them. You don’t win bail applications very often. And that’s probably the way it should be.

The debate about whether, in the light of a spate of tragic incidents in recent times, the whole bail system needs to be reviewed is an interesting one; but it’s hardly cut and dried.

In my view, the process of granting bail to accused persons is entirely adequate as it currently stands. It is very strict, and is far from being fundamentally flawed.

The starting point in any bail application is the presumption of innocence.

Anyone applying to be released pending their trial has yet to be found guilty of anything. And may never be. The fact that they are already on bail for another offence carries the same presumption; they haven’t been convicted of that offence either.

Judicial officers considering a bail application are required by law to consider a variety of factors before they have the power to release an alleged offender, in addition to the fundamental presumption that they haven’t committed the alleged offence in question.

The strength of the prosecution case, the offender’s previous record, and the history of any previous grants of bail are all carefully weighed into the equation.

Perhaps, in hindsight, judicial officers get it wrong, but it is beyond question that decisions are made in good faith after a proper consideration of all the relevant facts.

All judicial decisions, like political ones, are susceptible to human error and the vagaries of unknown factors. Sometimes innocent people are also on the receiving end of mistakes by the police, juries or the legal system at large.

That doesn’t mean that the entire system is faulty. If the police or the Director of Public Prosecutions have serious misgivings that any particular decision to grant bail is clearly wrong, they have the unfettered right to appeal it to a higher court. It is a power that in my experience is rarely exercised.

The vast majority of persons released on bail do not re-offend. They dutifully comply with the conditions imposed upon them, turn up for their court appearances and many are eventually acquitted. The process isn’t perfect, and never will be, irrespective of how tough we make it.

Each year in Australia, many tens of thousands of alleged offenders are released on bail without incident or any serious repercussions. That a tiny percentage might re-offend and commit horrendous offences doesn’t make the system faulty or in need of repair.

A judge releasing someone on bail may never know of factors that could surface during the person’s release and cause them to re-offend. The system can’t realistically accommodate these kinds of unknown and unforeseeable factors, however much it may be changed.

No amendment to the bail legislation can ever accommodate such unknowns.

In a similar vein, the process of appointing police officers or prison officers isn’t infallible. Some highly undesirable candidates slip through the net despite the rigours of the selection criteria. Bad doctors, lawyers, teachers, priests and pilots somehow also fall through the cracks, often with disastrous results for their communities.

Not every catastrophe that occurs in those areas will warrant a wholesale change to the process. A continuing monitoring and review of the system is, of course, required to identify obvious shortcomings that may be able to be fixed.

It’s easy to be wise in retrospect.

But the fact that a few appalling, tragic, albeit unforeseen, errors may have occurred is hardly reason to question a system that works well in all but a minute proportion of cases.

Tom Percy is a Perth Queens Counsel practising in the area of criminal law and is a former ALA WA National Director and Branch President. PHONE (08) 9217 9200 EMAIL percyqc@wolffchambers.com.au.