The NSW Bail laws are undergoing fundamental reform, spurred on by knee-jerk public reaction to bail decisions.
1) The presumption of innocence has been removed as an independent clause and has been moved to a new preamble of the act
The presumption of innocence now appears alongside the more ‘community-driven’ considerations: “the need to ensure the safety of victims of crime, individuals and the community”; and “the need to ensure the integrity of the justice system”.
The abolition of an independent presumption of innocence sidelines the presumption, rather than making it a primary factor in a bail authority’s decision-making process.
What the new law fails to realise is that the presumption of innocence is a fundamental aspect of the Western legal system and the common law, and that it should never, in any respect, be watered down or placed into the background of legislation. Nor should it be placed on an equal footing with other considerations. It is a fundamental principle of the common law that people should “have the right to be presumed innocent until proven guilty”.
Australia is also a party to the International Covenant on Civil and Political Rights (ICCPR): Article 14 states the right to the presumption of innocence. Australia should adhere to its international obligations.
While it may be said that “The presumption of innocence is not a purpose of the [Bail] Act” John Hatzistergos, Review of the Bail Act 2013 (2014). It is a necessary part of the act because it serves to protect those accused who are innocent of all charges. The idea of protecting innocent people from being jailed (before being proven guilty) dates back to the 1700s and English common law jurisprudence, notably Blackstone’s Commentaries.
2) The onus of proof has been reversed (placed on the accused) for (some) serious criminal offences:
- The new Bail Act introduces “show cause” offences, requiring a bail authority to refuse bail for a “show cause” offence “unless the accused person shows cause why his or her detention is not justified” (s. 16A(1)).
- This is a reversal of the common law presumption of innocence (see above).
- This is also a reversal of the onus of proof for bail.
- Instead of being presumed innocent, and thus warranting bail, for these “show cause” offences, bail is denied until cause is shown for release by the accused. As the accused has to “show cause”, the law places the onus of proof on the accused.
 “Show cause” offences include: serious offences punishable by imprisonment for life, child sex offences, serious personal violence offences, certain offences involving drugs, firearms or prohibited weapons, and serious offences committed by an accused person while on bail, on parole or subject to a supervision order.
3) Added consideration: “Whether the accused person has any criminal associations”:
– A new “matter” to be considered as part of assessment is: “Whether the accused person has any criminal associations” (s. 18(1)(g))
Again, this strikes against the presumption of innocence by vague notions of ‘ties’ or ‘links’ to criminality, rather than judging the case against the accused on its own merits. The notion of ‘associations’ has a similar sound to Queensland’s anti-bikie legislation, which criminalises association with a bikie club in public. The problem with ‘association’ measures is that it becomes unclear how closely someone has to be associated, and deems association itself criminal or suspect, which is a senseless proposition.
– Universal Declaration of Human Rights, Article 20(1) – Everyone has the right to freedom of peaceful assembly and association.
4) The Proposed Changes strike against the position of legal authorities, lawyers and the NSW Law Reform Commission:
NSW Law Reform Commission (Report 113) (Bail) (2012) – “The criminal justice system has embedded within it the value of personal liberty and a suite of cautionary concepts [including] the presumption of innocence, no detention without legal cause, no punishment without conviction by due process, a fair trial, individualised justice…”
- (Recommendation 8.1) “We strongly recommend a uniform presumption in favour of release, except in relation to appeal.”
- (Recommendation 10.9) A new Bail Act should provide that the following rules apply to all decisions whether to release a person, irrespective of any other consideration:
(1) Detention is a measure of last resort …
(2) A person must not be detained unless a custodial sentence is likely.