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Lawyers warn of bail crisis

Lawyers warn of bail crisis

By Karin Derkley

Courts Judgment 


Vulnerable clients, including women, Indigenous people and those with mental health issues, are missing out on bail under recent reforms.

Solicitors are spending their time “running around like social workers” trying to keep their clients out of custody under tighter bail laws. Meanwhile, police and court cells are filling up with record numbers of unconvicted people waiting for their matters to be heard, clogging up the court system, and leaving people behind bars for weeks and sometimes months.

Criminal law specialist Mark Woods says the delays in the criminal justice system are the worst he’s seen in more than 30 years of practice and represent a huge problem all over the state. “Delays of 18 months to two years from arrest to trial are not uncommon.”

The situation, which lawyers are describing as “dire” and a “crisis”, has come about after the Victorian government brought in what it said was the most “onerous” bail system in the country.

The bail system came under review in the fallout from the Bourke Street rampage in which Dimitrious Gargasoulas allegedly killed six and injured more than 30 people. Just days before his attack, Gargasoulas had been granted bail by a bail justice.

Among the reforms recommended in the Coghlan bail system review and accepted by the government is a presumption against bail for many more offences.

In the past only those who had committed the most serious crimes, such as homicide, serious assault and rape, would be denied bail.

But under the new regime, which includes other law and order reforms brought in over the past 18 months, other offences such as aggravated home invasions and carjacking have been swept into the Schedule 1 category which requires that people must be held in custody until they go to trial, unless they can argue “exceptional circumstances”.

The new rules also mean that those who have committed an indictable offence, such as shop theft, now lose bail if they commit a further indictable offence while on bail or on a community corrections order (CCO).

As well, those who breach conditions while on bail, such as being out after curfew, having contact with a prohibited person or missing a court hearing, are being taken into custody, even if they are as young as 15.

The consequences of the reforms has prompted Victoria Legal Aid to call on the government “to consider whether they have caused harm to disadvantaged Victorians and consequences for the justice system that should be fixed”.

“Based on the feedback from our lawyers working in every Magistrates’ Court across the state every day, we are concerned about the impact that bail reforms are having on the entire criminal justice system and particularly on vulnerable and disadvantaged Victorians,” VLA executive director criminal law services Dan Nicholson says.

“They have difficulty getting bail because they have to show 'compelling reasons' or 'exceptional circumstances', even though they are not facing a term of imprisonment and don’t pose any significant risk to the community,” he says.

Victorian Aboriginal Legal Service principal solicitor Kin Leong says the reforms mean clients who commit a relatively minor indictable offence, such as shop lifting or possessing marijuana, while on bail can now be put in the same category as someone who is charged with murder or rape.

“That means we’re either not running for bail because we can’t meet the exceptional circumstances test, or we’re mounting exceptional circumstances submissions, knowing that the delay on getting another bail application may well be longer than any possible term of imprisonment.”

Law & Advocacy Centre for Women principal legal officer Jillian Prior says the centre has seen an "overwhelming and sudden increase in prison numbers and women who would ordinarily have been bailed being remanded in custody. The cases we have seen are shocking".

Bendigo solicitor Luke Docherty had one young client recently whose bail was cancelled after he failed to meet a court hearing when his car broke down. “That put him in an exceptional circumstances position, and he was remanded in custody for a week even though he ended up with a CCO.”

The new regime has meant that record numbers of people are now being held on remand, rising from 25 per cent of all prisoners in 2015 to 36 per cent today.

For women and Aboriginal people the impact has been striking. The number of women on remand has increased two and a half fold in the five years to 2017, to make up 40 per cent of the prison population.

Twice as many Aboriginal people are on remand in Victoria this year as in 2015, to make up 40 per cent of Aboriginal prisoners.

The flow-on effect is that police and court cells are full, which means that clients are often unable to be transported to court for their hearings.

A 15-year-old client of Mr Docherty’s could not be transported to his court hearing in Bendigo from custody in Parkville because there was no space in the holding cell at the police station there.

“His dad and support person were here at court in Bendigo but we had to do the hearing via video-link. It was stressful for him, and I couldn’t take detailed instructions from him.”

Criminal lawyer Melinda Walker says that when accused persons are not present for their bail hearing it can affect their eligibility for bail. “Some are not being presented for their sentencing hearing, causing a further period in custody, when they may have been released at the first instance.”

“We have had cases of people being remanded in custody for minor property offences who plead guilty and get low sentences like a 12 month bond or a limited community order,” Mr Nicholson says. “This appears to be particularly affecting disadvantaged people, including those who are homeless and children.

“Placing a young or vulnerable person in custody unnecessarily for periods of time can interrupt their work, education or other supports that can help to prevent them offending,” he says. “This means they are more likely to reoffend, placing further stress on an already overstretched system and on the community.”

Clients on remand are also being held for long periods in police cells with no proper communications, making it difficult for them to give instructions to lawyers, criminal lawyer at Stary Norton Halphen, Nicole Spicer says. “We had one young guy who had been remanded for the first time, who spent 15 days in the Heidelberg cells.”

Prisoners on remand are not eligible for the support services and rehabilitation programs available to sentenced prisoners. Although their custody time is subtracted from any consequent prison sentence, the sentence they eventually receive is often equal to or less than the time they have already served.

Statistics from the new Bail and Remand Court which opened in May indicates that remand rates were lower in July 2018 than last year, with 62 per cent refused or not applying for bail, down from 78 per cent.

But fewer people were released on bail, with just 14 per cent in the new court, compared to 21 per cent last year.

What has risen is the number of finalised cases, from just 1 per cent last year to 14 per cent since July. Regional coordinating Magistrate Susan Wakeling says that’s because the court allows defendants to plead guilty on the day and be set up with CCO arrangements, pay a fine, or enter into some other non-custodial arrangement.

However, there are concerns that people are pleading guilty to minor offences to avoid going into custody, even when the case against them is not strong.

Mr Docherty says that people who are pleading guilty to avoid further time in custody on remand are ending up with criminal records which will impact them further down the line.

Ms Prior says that when women plead guilty “it negates their opportunity for totality in sentencing if they have multiple court dates. It also means where defences may be available women won't explore them and all court dates have now blown out”.

The state government is making no excuse for the situation. “Remand prisoners grow particularly when there are changes to legislation, tougher laws in terms of people being charged and sentenced, and that has happened in relation to bail and parole,” Victoria’s corrections minister Gayle Tierney says.

The government's solution is to build more prisons to hold unsentenced prisoners – among them the new 224-bed youth detention centre at Cherry Creek.

Shadow corrections minister Edward O’Donoghue has blamed the situation on ‘‘chaos and dysfunction in the courts”, and has suggested basing magistrates in prisons as a way of expediting the processing of offenders.

However, criminal lawyer Melinda Walker said the suggestion would further limit an accused person’s access to a lawyer of their own choice. “There is a real danger 'of out of sight out of mind' and that hearings will be conducted, unrepresented, unsupported, unfunded and behind closed doors. We must maintain transparency in our criminal justice system.”


Bail and Remand Court

The new Bail and Remand Court, which operates seven days a week from 10am to 9pm, is easing pressure on the day courts. But some lawyers say they are feeling under increased pressure as they try to help their clients get bail outside of business hours.

Melbourne regional coordinating magistrate Susan Wakeling says the new court means that defendants now have access to the full suite of services expected in a properly functioning court, including Court Integrated Services Program (CISP) services.

“We used to have to bring people back to court to ensure they had access to legal representation and CISP. Now we can get these things done immediately and we don't have to bring them back to court until their next court event.”

But that relies on solicitors being able to demonstrate to the court why their clients should get bail, whatever the time of day or night.

One lawyer described practitioners as “running around like social workers trying to draw together all these elements to get bail.

“They're there at night trying to access the resources and support services they need to get their clients CISP – like the Salvos or mental health services or doctors to prescribe methadone.”

Lawyers say that given the massive increase in operational times for the court, there is an urgent need to increase funding for legal representation as well as support services in the court.

While VLA receives extra funding to cover the cost of providing its lawyers to the court outside of business hours, other practitioners get no extra funding when matters drag on into the night.

Victorian Aboriginal Legal Service principal solicitor Kin Leong says VALS solicitors feel duty bound to stay on – often until 10pm at night – to assist their clients, even though the service has not been able to get extra funding to cover lawyers’ time in the night court.

“Every time we've stayed on, we've been able to secure bail for our clients, so it's clearly vital that we are there so another Aboriginal person doesn't have to spend one more night in custody than they should.”

It’s a similar story for private practitioners who are having to make the difficult decision as to whether to stay on past business hours to appear for clients, despite receiving no extra funding.

VLA says it is aware that an increasing number of practitioners are having their matters heard in the after-hours session of the court and says it is monitoring the situation and will look at “how best to support and fund private practitioners in delivering legal aid services at night”.

Magistrate Wakeling says she understands the impact of the new regime on the legal profession. “It is a significant departure from the way the profession has worked, and more consideration will have to be given to the implications for the legal profession and their work practices.

“The court is aware of this being a significant change and that it will have an impact on the profession and how lawyers do their work,” she says, “and we are mindful that we need to be responsive to that.”

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