Statutes Amendment (Bail Authorities) Bill

Second Reading

The attraction of interest of members to this bill has been stunning. I have been thoroughly inspired by the outpouring of contribution in relation to a matter which, frankly, hardly usually attracts much attention, but in this instance we have seen a resurgence of interest in a little known and little cared about area of our law, the Bail Act.

I would just like to especially thank all members who have made a contribution, and I hope in doing so they have been able to, I suppose, re-enlighten themselves about the significance of having legislation to deal with people in these circumstances, whose numbers are relatively minor in the overall population. People actually have to go in and apply for bail. It is only a small group of a group of people who go through our courts in the criminal system, but it is a significant one. It is most significant because it is really critical that, whilst we uphold the principle of innocent until proven guilty to ensure that we have protections for people’s rights as they are being prosecuted through the system, we equally look at areas where there must be a very strong set of circumstances to exist for bail to be granted.

In large part we start with this presumption, and therefore when it comes to setting the rules around what factors are to be taken into account in granting bail, we recognise that the other principle reason we have a whole set of laws in relation to bail is to protect the witnesses so that we have an effective trial system, a fair trial system, and that we make sure that they are not vulnerable to any intimidation or conduct that is going to either make them change their mind or frighten them off, etc. More important than anyone in this whole process who has to ultimately go through a trial, or even negotiation and a sentencing process, is the victim or victims.

The bail law has to balance all those things. As a parliament we need to open it up from time to time and look at how we might refresh it. This whole process on this occasion has come about as a result of the matters raised by the Chief Justice of the Supreme Court back in December 2017, which started with his expression to the previous government that there ought to be an allowance for the District Court to be a general bail authority and provide the courts with that express power to be able to implement that.

I do not know why that was overlooked or not pursued by the previous government, but it may have had other priorities. Upon coming into government we did activate that inquiry, and obviously sought approval. It seemed to be a sensible, practical approach. I just want to explain to the members that we have had now, I think, for about 45 years—certainly since the early 1970s—the establishment of the District Court, Local Court and District Court structures in our criminal court.

We used to just have the Supreme Court and the Magistrates Court. We went into a three-tier system but we still had a system where the Magistrates Court took all criminal cases in the first instance, so even if you were charged with murder or shoplifting you would all come before the Magistrates Court and they would process matters. The largest number in that court would be either trials or receiving submissions on guilty pleas and sentencing would be made, but anything that was indictable or at a serious level needed to be referred to the superior court and that traditionally was the Supreme Court.

Once the establishment of the District Court took place, it took not treason or murder but just about everything else that was able to be dealt with in the District Court. Still sometimes the Supreme Court hears complicated or multi-defendant cases that might involve manslaughter, for example, but largely the District Court does the heavy lifting in the numbers of serious cases.

So it is an important court, it is a busy court in this area, and because we have developed different structures in relation to our courts, from time to time, even now—well, 2017—we still throw up circumstances where something that seems quite obvious in the sense of the efficient operation of a court system just suddenly becomes apparent. In any event, the Chief Justice identified this for us.

We thought it was meritorious of consideration and progressed it through the consultation process. But, in the course of that, within a few months, we actually received a further submission from the Chief Justice pointing out that he had another request to amend the Bail Act which related to this whole question of noncompliance with bail conditions so, again, we have had to go through a round of consultation for all the usual suspects and come back to the parliament with really a combination of these issues. It was during the course of the consultation on the second matter, late last year, when we got feedback as to some technical points regarding bail revocation due to non-attendance in court, so we really come to the parliament with this bill to present some options as to how we finalise these.

The shadow minister raised in his contribution a query as to whether there were any particular cases or examples that had been identified regarding the first issue of needing to bring in the District Court as a bail court. I will just make some quick inquiries. I am not aware of any. I do not recall any even in the matters of correspondence that were raised. Quite often judges, and the Chief Justice in particular, will bring to our attention a piece of case law that might relate to exposure of a weakness but I do not recall one. I will just absolutely check.

I am advised that there is no particular example, other than the fact that what frequently came to attention was the need, in variation applications particularly, for files to be transferred back and forth to facilitate the law as it currently stands; that is, the Magistrates Court would have to deal with this.

In the era of hard copy files, I imagine they are trotted back and forth across King William Street, or from whatever repository they are held at the time, and have to be physically transferred. We are in an electronic world now and things are starting to change. The ECMS program is about to be implemented in relation to the new rules of the Supreme Court being issued, so we are starting to have electronic transfer, but a lot of our court records are still in hard copy and obviously that is the case in the Magistrates Court.

I noticed the other day at the Port Adelaide Magistrates Court that they still actually fold them up with a little rubber band, I think it is these days. I still have a couple of reels of the pink tape, which I keep for posterity. I make the point that there is no identified area where it has caused some particular burden in a specific case, but it frequently comes up and obviously requires that operational aspect. The second matter that was raised—

Mr Odenwalder: The question was more about the revocation part of the bill.

The Hon. V.A. CHAPMAN: I am coming to that. The second aspect that was raised by the shadow minister related to sections 6, 18, 19A and 19B of the Bail Act, which allow for a court to revoke the bail, and, as amended, the bill to change the point of revocation to the point of arrest. However, clause 5 is drafted so that the power of the court to revoke a bail agreement immediately is preserved. I think that covers that question.

In relation to the question of the lapsing of bail and the 'unconditionally' explanation, as I indicated, just to put this in context, there are occasions when a bail agreement is revoked and it is later established that no breach of the relevant bail conditions has in fact occurred. In other words, the bail gets revoked, the conditions lapse. They come back in. It is established that in fact there had not been a breach. The reference to 'unconditionally' says, 'Where there has been no breach the bail agreement is not taken to have been revoked and the defendant will be released unconditionally.'

'Unconditionally' in that context is that they are being released without any new or different conditions. So they have had bail. They have had, say, 10 conditions and one of them is allegedly breached. Bail is revoked. They come back before the court. They actually establish that that is not right, so they go back to having their bail arrangements with their 10 conditions. They do not get new sets of conditions, unless other circumstances are changed where another application is made. Does that make that clear?

Mr Odenwalder: It does, but I just do not see how that differs from now.

The Hon. V.A. CHAPMAN: Essentially, the original 10 conditions that were there on the bail would continue.

Mr Odenwalder: But that is the state of affairs now, isn't it?

The Hon. V.A. CHAPMAN: No, the problem at the moment is that the act of revocation as a result of the alleged breach and the process that goes with that means that that lapses. So we are making sure that it does not lapse, but under this little aspect that was found, if you actually revoke it, then it is gone. What we have done here is make an amendment to ensure that, 'Okay, we have tidied up this misunderstanding about you breaching this condition. We are going to put the bail arrangement back in place with the conditions that you previously had, and you don't get any extra ones.' You get that whole process reinstated without further condition, so 'unconditionally' is the word that has been used. Does that make that clearer to the member?

Mr Odenwalder: It does, but surely that is state of affairs now, no matter at what point the revocation takes place.

The Hon. V.A. CHAPMAN: No, not quite. I will take that interjection on the record, just to manage it.

Mr Odenwalder: I am trying to avoid the committee stage. I am sure you are right.

The Hon. V.A. CHAPMAN: I understand that. I hope I have made it clear, but perhaps I have not. I am trying to think of another word that could have been used. If I can put it this way: we are trying to introduce a process where, because of this technicality that was identified to us that has the effect of the revocation, we need to reinstate it prior to the revocation, having dealt with something that should not have revoked it. Do you see what I mean?

So there has been an allegation made and an arrest has occurred. That is what we are doing there. So no new bail conditions are imposed. As I said at the time, 'unconditionally' in this context means that no new bail conditions are imposed. It is really a technical matter that was brought to our attention that has resolved it now. Was there something else?

Mr Odenwalder: Whether there have been actual instances or actual case law that has affected that second decision about the revocation of bail.

The ACTING SPEAKER (Mr Cowdrey): Order!

The Hon. V.A. CHAPMAN: We will take that as just talking amongst ourselves. I think the question is: have there been instances where there has been a revocation as a result of what we are remedying today and somebody has been left vulnerable? For example, a witness has been hurt, then they have complained about it and of course then we have found that actually the condition did not exist anymore as a result of the revocation. I will just check that.

I am advised that there have been no examples given by the Chief Justice, just that he had been alerting us to the fact that this was a risk. I suppose those who sit in courts and have discussions about cases from time to time would say, 'I had a case before me today and this was the situation that arose, and it raises this very interesting point about, if the revocation has occurred, then how can we deal with a breach between the time of the arrest and the hearing in the District Court?'

Sometimes it can come about as a result of somebody saying, 'What if?' I have not been advised of any particular cases. I am going to look across to the member for Heysen; he might have come across some in his career. I am sure if it had been raised by the bar or by judges as a weakness, where somebody had been hurt as they had been left isolated—I think it is fair to say, certainly a long time ago when I was doing criminal work, that I had no idea that these conditions were not continuing until we got back into court, and I do not think my clients knew.

Mr Odenwalder: Hopefully the news does not get out today.

The Hon. V.A. CHAPMAN: It is probably a good thing, because they—

Members interjecting:

The ACTING SPEAKER (Mr Cowdrey): Please, can we refrain from interjecting. Attorney.

The Hon. V.A. CHAPMAN: —were probably under strict advice, which I am sure would be responsible for all counsel, to make sure that people were complying with the conditions that the court had set. If there was found to be some breach and they were ringing you up from the cells to say, 'I have been arrested. There has been a claim of breach that I have done such and such,' there has been no understanding of the actual lapse of that and that somehow or other they could freewheel their circumstances and leave the state, contact a witness, have a firearm—whatever bail conditions there were that could be then ignored.

We really have to be grateful to the Chief Justice in this instance for bringing the matter to our attention, and for the other excellent work done by stakeholders who, once they had a look at this issue, then wanted to tidy it up completely. I think we have captured it all. Certainly, at the time of this matter being considered I had some discussions with the DPP. They were consulted as a matter of course through this, together with the other usual agencies on these matters, and they were certainly keen to make sure that that was covered, unsurprisingly, for witnesses and for victims.

I think that probably covers most of the matters. I appreciate the indication of support by the shadow minister, and indeed the glowing support from other members who contributed to this debate, for these amendments. It does not entirely pertain to the narrowness of the bill before us, but we are talking about court structure.

I am pleased to confirm to the parliament today that His Excellency has approved the appointment of His Honour Chris Bleby as the newest member of the Supreme Court and the appeal court of South Australia. As he has had a long period of service as Solicitor-General, accordingly I have had valuable advice from him. The whole of South Australia has been the beneficiary of his advice and representation on our behalf in the High Court and other forums, I advise the parliament. He goes to the court with appreciation from me and I think from all South Australians for the work that he has contributed to date and congratulations are in order.

Bill read a second time.