Bailing out the judges
Granting bail is a mix of the law and instinct. The judges have to balance the risk of the charged person being let back into the community against the restriction of the freedom of the accused. Judges have recently been getting a lot of criticism in the media for their bail decisions.
The bail reform review, run by the Ministry of Justice, revealed a number of statistics which disclosed the surprisingly low number of breaches of bail involving serious crime, showing that the risk is correctly judged in the majority of cases.
The Michael Curran debacle has become the trademark case for bail reform. Curran, while on bail for strangling a woman and abandoning her body, murdered a two-year-old child. The victims’ parents blame to courts for granting him bail saying they can never forgive the decision.
In a rare interview, Chief District Court Judge Doogue spoke about the need to public education about the legal system, and where the accountability lay for the decisions made. She very rightly pointed out that judges do not make law, but simply apply the legal principles that have previously been decided.
The NZ Herald reports that the campaign research found that there was "no foolproof way of predicting which defendants will offend on bail and the extent to which serious offending on bail would be reduced".
And they are right. Under the Bail Act 2000 it is very, difficult to be declined bail. One must have continuously reoffended, breached bail, or shown to be a threat to the community or the case against them. The four main aspects that are considered are…
Under the current system, if police are opposing bail, the prosecutor must show why bail should be refused. The entire burden is on the Crown. This changes however, if the accused is a frequent reoffender and has breached bail multiple times, and the burden is flipped upon the alleged offendor. This is what one of the recommendations deals with. It states that the burden of proof, for an alleged murderer, should be reversed and placed upon the defendant. This would make it up to them to show why it would be unjust to deny the accused bail.
This suggested provision, while it may be effective, undermines the very foundation of our legal system; the maxim that, you are innocent until proven guilty. In application, the courts will be essentially labelling the accused are guilty and not deserving of bail, and have the alleged offender convince them otherwise.
Being in the midst of a sea of bail cases at the moment at university, I agree that with 53.4 per cent of the country in that I have high confidence in the competence of judges. What I do have an issue with however are our bail laws. While we pride ourselves on being an open and free country that places high value on the right to the freedom of its citizens, we are forgetting that by allowing some of the accused to roam the streets we are putting that freedom at risk.
While bail is often granted upon a number of conditions such as no contact with the victim (in domestic cases), no alcohol, or a restricted mobility area, these can still be easily breached to the detriment of the community.
It is always difficult to come up with new law, and new reforms. And I am positive I could not do a better job than what has already been done, but the problem is not in the judges or their application of the law.
It is in the law. We need to toughen up.
Murder on bail: 156 people bailed between 2004 and 2009 on murder charges; three of these committed violent offences while on bail; one person committed murder.
* Pooja Sundar is a BA/LLB student in Auckland
Granting bail is a mix of the law and instinct. The judges have to balance the risk of the charged person being let back into the community against the restriction of the freedom of the accused. Judges have recently been getting a lot of criticism in the media for their bail decisions.
The bail...
Granting bail is a mix of the law and instinct. The judges have to balance the risk of the charged person being let back into the community against the restriction of the freedom of the accused. Judges have recently been getting a lot of criticism in the media for their bail decisions.
The bail reform review, run by the Ministry of Justice, revealed a number of statistics which disclosed the surprisingly low number of breaches of bail involving serious crime, showing that the risk is correctly judged in the majority of cases.
The Michael Curran debacle has become the trademark case for bail reform. Curran, while on bail for strangling a woman and abandoning her body, murdered a two-year-old child. The victims’ parents blame to courts for granting him bail saying they can never forgive the decision.
In a rare interview, Chief District Court Judge Doogue spoke about the need to public education about the legal system, and where the accountability lay for the decisions made. She very rightly pointed out that judges do not make law, but simply apply the legal principles that have previously been decided.
The NZ Herald reports that the campaign research found that there was "no foolproof way of predicting which defendants will offend on bail and the extent to which serious offending on bail would be reduced".
And they are right. Under the Bail Act 2000 it is very, difficult to be declined bail. One must have continuously reoffended, breached bail, or shown to be a threat to the community or the case against them. The four main aspects that are considered are…
Under the current system, if police are opposing bail, the prosecutor must show why bail should be refused. The entire burden is on the Crown. This changes however, if the accused is a frequent reoffender and has breached bail multiple times, and the burden is flipped upon the alleged offendor. This is what one of the recommendations deals with. It states that the burden of proof, for an alleged murderer, should be reversed and placed upon the defendant. This would make it up to them to show why it would be unjust to deny the accused bail.
This suggested provision, while it may be effective, undermines the very foundation of our legal system; the maxim that, you are innocent until proven guilty. In application, the courts will be essentially labelling the accused are guilty and not deserving of bail, and have the alleged offender convince them otherwise.
Being in the midst of a sea of bail cases at the moment at university, I agree that with 53.4 per cent of the country in that I have high confidence in the competence of judges. What I do have an issue with however are our bail laws. While we pride ourselves on being an open and free country that places high value on the right to the freedom of its citizens, we are forgetting that by allowing some of the accused to roam the streets we are putting that freedom at risk.
While bail is often granted upon a number of conditions such as no contact with the victim (in domestic cases), no alcohol, or a restricted mobility area, these can still be easily breached to the detriment of the community.
It is always difficult to come up with new law, and new reforms. And I am positive I could not do a better job than what has already been done, but the problem is not in the judges or their application of the law.
It is in the law. We need to toughen up.
Murder on bail: 156 people bailed between 2004 and 2009 on murder charges; three of these committed violent offences while on bail; one person committed murder.
* Pooja Sundar is a BA/LLB student in Auckland
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