VCAA Study Design links:
Unit 3 AOS 1 Reasons why laws need to change
Unit 4 AOS 2 Criminal pre-trial procedures and their purposes, including bail and remand
Melbourne car attack: Bail law reform announced by Daniel Andrews in wake of Bourke St rampage: ABC News 23 January 2017
Melbourne mall deaths: Daniel Andrews announces change in bail laws: Guardian Australia 23 January 2017
Five pedestrians were killed by a car that left the road and mounted the footpath in Bourke Street, Melbourne, on 20 January 2017. In the immediate aftermath, Premier Daniel Andrews announced a review of the legislation covering bail in Victoria. This story demonstrates how the criminal pre-trial procedures of bail and remand operate, and illustrates some reasons why laws may need to change.
Bail and remand
When a person is charged with a serious criminal offence, known as an indictable offence, they are usually arrested by the police and taken into police custody. The police must then bring the accused to a bail hearing, where a magistrate will decide whether the accused should be remanded in custody, or whether they should be released into the community on bail until their trial. The magistrate will consider whether releasing the accused on bail may pose any risks, including:
- whether the accused poses a threat to the community if they are released, by committing further offences
- whether the accused poses a “flight risk” – that is whether they are unlikely to return for their trial
- whether the accused is likely to tamper with evidence or witnesses
The police may oppose an accused person’s application for bail, and may submit evidence on any of these issues.
The magistrate will consider whether applying conditions to the accused’s bail may reduce this risk, such as regular reporting to a local police station, surrendering a passport to police, or banning the accused from speaking to particular people.
If the magistrate considers that it is not possible to address risks with appropriate conditions, the accused will be remanded in custody until their trial.
Melbourne Remand Centre, http://s20.postimg.org/qz2dy0g9p/DSC01233.jpg
The law relating to bail is provided in the Bail Act 1977. In Victoria, when a person is arrested outside court hours, they may be brought before a bail justice who considers their bail application. Bail justices are volunteers. They perform an important function in upholding the presumption of innocence, by reducing the amount of time that an arrested person must wait before having their custody reviewed by an independent authority.
Why bail laws are being reviewed
Following the incident in the Bourke Street mall on 20 January 2017, police announced that the accused driver, Dimitrious Gargasoulas, had previously been arrested and charged with an indictable offence on Saturday 14 January 2017. Because the courts were not open on the weekend, police brought Gargasoulas before an after-hours bail justice. The bail justice decided not to remand Gargasoulas in custody, and released him on bail.
Court documents unclear if police opposed bail, magistrate says: The Age 25 January 2017
Many people were concerned that such a dangerous person was released into the community. If Gargasoulas had been remanded in custody on 14 January, he would not have been free to drive in Bourke St mall on 20 January. Many people consider that the after hours bail justice made the wrong decision to release Gargasoulas on bail, as he posed a threat to community safety.
One reason why laws may need to change is that existing legislation is inadequate to protect the community from identified harm. One of the changes to the Bail Act 1977 proposed by Premier Daniel Andrews, is that bail applications for people accused of violent crime must be considered by a sitting magistrate and not an after-hours bail justice, when police oppose bail. This would ensure that all relevant issues relating to community safety and adequate conditions are considered and decided upon by the most qualified authority, a magistrate, and not a volunteer bail justice who may be less experienced.
People who are charged with the most serious indictable offences are generally not entitled to be released on bail before their trial. Gargasoulas has been remanded in custody until August.
Melbourne car attack: Accused Bourke St killer Dimitrious Gargasoulas charged with five counts of murder: ABC News 23 January 2017
Bail is the release of an accused person from custody on condition that they be of good behaviour until their trial for an indictable offence. Bail upholds the presumption of innocence, as it allows an accused person to be released into the community. They are able to prepare adequately for their trial, and are not being punished by deprivation of their liberty before they have been found guilty.
Remand is when a person accused of a serious indictable offence is held in custody until their trial.
One reason why laws may need to change is because existing legislation is inadequate to protect community safety. An incident such as the Bourke Street mall tragedy demonstrated that procedures for considering bail applications outside court hours may be inadequate to protect the community from continued offending by bail applicants who are in custody and charged with indictable offences.