Sydney cafe siege – A comment on Australian bail law

Sydney cafe siege – A comment on Australian bail law [Guest post]

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Following the horrific events at the Lindt Café in Sydney, dreadful messages have been sent to members of the judiciary and lawyers in New South Wales. People are looking for someone to blame, and as Man Haron Monis was on bail at the time, the courts have come under fire.

Man Haron Monis had previously been seen in court several times for a list of allegations including; sending offensive letters to families of soldiers killed in Afghanistan, being an accessory to his ex-wife’s murder; and over 40 sexual offences against women. On all these occasions, he was granted bail. This raises the question that many are asking – were magistrates right to grant such a dangerous man bail?

Australia and England have very similar justice systems, aside from the federal application in Australia, but in 2013 the NSW Bail Act was completely rewritten. It will now be explored again, in light of the public pressure questioning whether Man Haron Monis should have been allowed bail. England’s Bail Act 1976, reflects the previous evolutionist nature of the New South Wales Bail Act 1978, and is perhaps a good comparative in validating cries for reform.

So – Why was Man Haron Monis allowed Bail?

Bail must take into account potential risks to the community and victims as well as the presumption of innocence. For the majority of offences therefore there is a presumption of bail. This is true in most legal systems. To start from a position of innocence in the law, means the rules behind bail must reflect the severity of detaining a potentially innocent defendant before trial. There are certain exceptions for the most severe of crimes, murder for instance (and those who are already in custody), but the presumption in favour of bail remains for the majority of defendants.

In order to see why Monis was on bail, it’s necessary to turn to the New South Wales Bail Act 2013, a new law that operates on a risk calculating basis. If a defendant is considered to be an “unacceptable risk” that must be offset by conditions before they are released on bail.[1]

In 2013 Monis was charged as an accessory to the murder of his ex-wife. We do not know the extent of the role that Monis played in the murder but presumably it was a minor one as he was granted bail. The court, considering whether there was an “unacceptable risk”, decided; “If there is a threat, it was to this woman who was murdered”.[2] It was a crime linked to domestic and emotional abuse and although violent, it would be a long stretch to assume that Monis would go on to commit terror crimes whilst on bail.

At the time he was killed, he was on continued bail for separate charges of sexual and indecent assault. In that instance, the magistrates accepted that the Crown had a weak case, and because of that it seemed unlikely he would be serving a significant custodial sentence, if convicted. It would have been inappropriate, and indeed unlawful, to detain him simply whilst the Crown strengthened their case. There are a finite number of reasons for refusing bail for “unacceptable risk” in the 2013 Act, and in this case, the risk to victims or the community was considered alleviated by strict bail conditions.[3]

The issue of bail is often a tick box exercise. Is there a presumption of bail? Yes. Are there reasons that bail should not be granted? Yes. Are those reasons offset by conditions upon bail? Yes; bail granted.

Bail in Australia

The old Australian New South Wales Bail Act was a cumbersome creature, and had had somewhere near 80 amendments since 1978.[4] As a result, the Bail Act was completely rewritten in 2013.

The new act’s “unacceptable risk” calculation has, although being in force for only a few months, already come under attack. Amendments to this act will come into force in January of 2015, but the public are asking whether further amendments are necessary to prevent future devastation.[5] The Bail Act 2013, under section 17 defines unacceptable risks as “an unacceptable risk that an accused person… will; fail to appear at any proceedings…., commit a serious offence.., endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence”. [6] When considering whether there is an unacceptable risk, the Act sets out a finite list of matters to be brought to the court’s attention.

It is worth noting that there is no definition of “serious offence” in the Bail Act, rather another, much shorter, list of matters to be considered when deciding whether an offence is serious. This list is not finite, but interpretive and potentially suggestively specific. This means that in every individual case, it is up to the court to decide not only whether an offence may be committed but whether that offence will be serious enough to warrant detention. Section 17(4) specifies that sexual or violent offences, those involving a weapon are to be seen as potentially serious as well as the volume of offences and the likely effect on the community. [7]  In essence, the new Act is meant to leave a lot more to judicial discretion, which either encourages flexibility or uncertainty.

Cases of “lone-killings” are rarely predictable. Monis was a volatile man, but he was not obviously likely to murder, at least not as he presented in the courtroom. The outrage is focused around the multitude of his previous sexual and violent offences, and that he was released despite them, but why shouldn’t he have been granted bail? Was this simply a tragic but ultimately unpredictable incident?

The problems with the 2013 Act

We do not have details of the women alleged to have been assaulted and how well they were known to him. There have been suggestions Monis was violent in a domestic context, but that was not a reason of itself to refuse bail.

Over the last year in New South Wales there have been several high profile murders and assaults committed by men on bail for domestic violence. [8] The way in which bail operates has lead to repeated glitches in the way domestic violence cases are treated. The presumption of bail in New South Wales, and some other states, was displaced in cases of “family violence offences” under the Bail Act 1978; where the accused had a history of violence; had previously been violent to the alleged victim; or had failed to comply with a previous bail condition.[9] 

The new Bail Act 2013 uses a risk assessment criteria when assessing bail applications. In relation to domestic violence, the same applies as it does under any other circumstances; if the “unacceptable risk” of endangering the victim or other “interested parties” cannot be alleviated by conditions of bail, then the defendant will not be granted bail. The cases occurring since the new act was in force appear to suggest that this system is not always effective in the instance of domestic violence. Defendants are still being released on bail under strict conditions; that they live elsewhere and report to the police station often enough that they can be kept track of.

Perhaps the system failed here in not recognising the severity of these crimes and not detaining Monis for them, rather than in not predicting his act of lone terrorism, although this may be with the benefit of hindsight. Although the exact facts of the case are not known, it does appear that Monis was under strict bail conditions, just like the men who were later convicted of murder of their partners. The way in which these men were considered by the Magistrates to no longer pose a threat whilst under those conditions, may be ultimately flawed in these cases. Either that, or an unfortunate coincidence.

Reform?

In the case of the Bail Act 2013, there seems to be two problems that relate to Monis’ case, but they are so closely intertwined they may as well be one and the same. The lack of definition in the act as to “serious offence”, and that domestic-based violence is not specifically considered a serious offence.

Bail is not a punishment, but a reflection of the presumption of innocence and used only as a protective measure to ensure justice. The fact is, conditions placed on bail are not necessarily going to protect someone from an abusive partner who has already decided their freedom is gone, and that there is some vigilante justice to be had. It may be that there is no way of protecting the victim apart from keeping the abuser in custody, but there has to be a certainty that that defendant will serve a significant custodial sentence.

That being said, England’s recently added ground that protects from the physical or mental abuse of the victim in indictable cases (and even summary offences) may be something that the Bail Act 2013 could learn from. The new ground “believing the defendant will cause physical or mental injury to a person or cause an associated person to fear the same”, was added in Dec 2012 to ensure that victims of domestic violence were protected from their abuser being released on bail immediately.[10] As it stands bail “need not be granted” if there is a prospect that the defendant will repeat the offences on that same person. Currently, the Australian Act has no equivalent, despite obviously targeting abusers in the 1978 act. The new act appears to be failing victims of domestic violence and there seems no justification not to reform.

Conclusion

So should the laws surrounding bail change again because of Monis’ act of lone terror? Hindsight is a misleading instrument, especially when paired with publicity. The new laws that will come into force in January should be merely comparatively considered; in the hope of preventing future offending. Those amendments shouldn’t be used to accuse magistrates of performing poorly, unless that would have been true under the rules in force at the time. In such a situation it is the legislature who can properly be blamed.

There is a great cause here, however, for acknowledging the poor way in which bail applies to domestic violence, terrorism aside. Perhaps it is time to concede that conditions on bail to prevent repeat offences are too lenient, too risky to victims, and perhaps it is time to acknowledge that domestic violence is an exception to the rules around conditions and “unacceptable risk”.

By Emily Lanham

Emily is a paralegal in a London barristers’ chambers, and works independently for Burton Copeland solicitors (burtoncopeland.com). In her spare time she is the  Director of the youth group Big Voice London.

2 COMMENTS

  1. I’d be interested to learn Emily’s views on the way in which English and Welsh courts are interpreting the ‘new’ (December 2012) provisions on the risk of repeat offending against domestic partners in relation to the grant of bail. Does she have any sense of real change? My own impression is that, whilst not a sea change, this is nevertheless being more proactively considered by the courts as a highly relevant factor in determining whether or not to grant bail.

    • Hi Polruan,

      The December 2012 addition to the bail act certainly opens up the possibility to prosecutors of a more solid line of argument against bail.

      Like you say, it is not the sweeping change of attitude towards domestic violence cases that perhaps some might advocate and these things do take time to cement themselves in the courts’ consciousness. It is undeniable though that the need for the provision has been acknowledged and backed up by the use of it in many instances.

      Protection against repeat offending, before it happens, is something domestic violence victims should have seen a long time ago. By the time it gets the court it’s already a case of repetitive injury anyway.

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