Artificial intelligence to help judges get bail decisions right

Judges under fire for bail fails are going to get a hand from artificial intelligence, the state retiring Chief Justice has revealed.

Retiring Chief Justice Tom Bathurst. Picture: Toby Zerna

Judges and magistrates under fire for bail fails are going to get a hand from artificial intelligence, the state retiring Chief Justice Tom Bathurst has revealed.

The technology will use a series of checklists and possible outcomes to help the courts make the right decision.

Breaking his silence on the recent bail controversies, Chief Justice Bathurst admitted bail mistakes did happen “from time to time” but blamed them on the judges and magistrates not being given the full facts and circumstances by lawyers.

But he said the laws were tough enough despite a string of pro-bail decisions by NSW magistrates prompting Attorney-General Mark Speakman to refer them to the Bail Monitoring Action Group.

Retiring Chief Justice Tom Bathurst in his office at the Supreme Court in Sydney. Picture: Toby Zerna

“It’s a balance,” the state’s top judge, who retires this week, told The Daily Telegraph in a rare commentary outside the courtroom.

“You’ve got to remember that the judges and magistrates are not responsible for the facts that are put before them that lead to the grant or refusal of bail.”

He blamed some of the contentious decisions on changes to bail laws.

“I think what happens often with the changes that there will be, as there has been, some serious offences committed by people on bail and that leads to urges for change,” he said.

The path towards using artificial intelligence across the court system was still in its infancy but it will not take over decision-making, he said.

“That’s an example of working towards ensuring to the extent it is possible the right decision is made,” Chief Justice Bathurst said.

The move follows a recent report by the influential NSW Judicial Commission, of which the Chief Justice is the president, which highlighted how the complexity of bail laws meant that “two bail applications with very similar facts may result in different outcomes.”

He said the computer-assisted programs would include checklists the judges and magistrates would have to consider and what would happen if they came to certain conclusions.

“It won’t mechanise the decisions but it will be an aid,” he said.

“In the best of all possible worlds you would carry out a full and detailed investigation but that would mean bail hearings would extend over days, that’s simply impossible.

“The proportion where (bail) doesn‘t fail is far greater than those that do.”

The Chief Justice defended one of his more controversial decisions after ruling elite Trinity Grammar could not defend claims brought against it by four old boys sexually abused for years by a former teacher, now in jail for 18 years, because the school said it had lost all the paperwork from that time and witnesses had died.

He said while he had sympathy for the three men who lost their right to sue the school, his job was to apply the law and that had to come first.

“There are many (times) where you make a decision which you think is legally right which is not necessarily attractive to the decision-maker,” he said.

Among the notable cases he has adjudicated on are various appeals by disgraced ex-Labor powerbroker Eddie Obeid and the recent decision to grant a retrial to former NRL star Jarryd Hayne for alleged sexual assault.