Report from NSW Judicial Commission finds bail laws are too complicated

A report from the NSW Judicial Commission has warned the state’s bail laws are far from simple and require “mental gymnastics” to work through.

Judges and magistrates have been warned that the state’s bail laws are far from simple and require “mental gymnastics” to work through.

A report from the NSW Judicial Commission — whose job it is to educate the judiciary — also highlighted how senior judges themselves have criticised the laws, including whether ankle bracelets work.

The report, which was made available to all judicial members last year, said their complexity meant that “two bail applications with very similar facts may result in different outcomes.”

The judges and magistrates have also been told that their colleagues let 64.5 per cent of offenders who skip bail off with a slap on the wrist, handing down a section 10, which is a conviction without any other penalty, for the offence of failing to appear.

The next most common penalty type imposed was a fine only in 10.9 per cent of cases with just 9.1 per cent jailed, as the laws come under scrutiny following a series of pro-bail decisions.

A report from the NSW Judicial Commission highlighted how senior judges themselves have criticised bail laws.

The report, prepared by researchers with the judicial commission and called Navigating the Bail Act, gave a rare insight into what the judges themselves thought of the laws.

It quoted Supreme Court Justice Robert Beech-Jones who said in a judgment that even making wearing an ankle bracelet a condition of bail did not eliminate the risk of absconding and “the delay between notification of any violation and action being taken by police was such that the accused could leave the jurisdiction”.

Another Supreme Court judge, Justice Ian Harrison, said in a judgment that parliament should have “offered guidance” to the judiciary after changing the bail laws in 2014, adding “show cause” offences where a person must be refused bail unless they can “show cause” otherwise.

These include sex with a child under the age of 16, terrorism, firearms offences and murder.

Accused drug kingpin Mostafa Baluch, who was captured after 16 days on the run, alleged removed his ankle bracelet after he was granted bail by Sydney’s Central Local Court on drug importation charges which carry a maximum of life in jail and are among those where there is an assumption against bail.

“It is regrettable that the parliament did not see its way clear to offering some guidance as to the matters that should be taken into account in assessing the show cause requirement,” Justice Harrison said when he refused bail to a man, 40, charged with having sex with a girl aged under 16 whom he had groomed.

Mostafa Baluch was eventually stopped at the Queensland border.

The judge said it would have helped if parliament had specified what the “special or exceptional” circumstances were for bail to be granted in such cases.

Justice Harrison also said that it was not helpful when the prosecution opposed bail in almost all cases.

“Two bail applications with very similar facts may result in different outcomes,” the judicial commission’s report said.

“The mechanics of the bail provisions and the separate tests to be applied often require a level of mental gymnastics.”

The report also told the magistrates and judges that between May 2014 and June 2019, a total of 14,425 offenders were sentenced for 20,914 fail to appear offences in the state’s courts, according to figures from the NSW Bureau of Crime Statistics and Research.

Around half of the bail breaches involved further offending while on bail with the most common offending being breaches of an apprehended domestic violence order (46.5%), “other driving offences” (14.6%), domestic violence-related assault (13.5%), harassment, threatening behaviour and private nuisance (12.8%) and possession and/or use of illicit drugs (10.1%).