Balance on bail laws needed to protect public

THE fact that Dimitrious Gargasoulas was on bail when he is alleged to have committed the Bourke St offence has put the spotlight on bail laws, writes Justin Quill.

• Mum struck in rampage wakes from coma
• Accused’s behaviour became more erratic
• Bail overhaul in wake of Bourke St massacre
• Security check on Australia Day parade
• Witnesses try to make sense of horror

• Patrick Carlyon: Melbourne’s struggle to shake off touch of evil

• Andrew Rule: Families have right to know truth

THE deaths, destruction and carnage that occurred in Bourke St last week was a tragedy.

No one will disagree with that. But what we do about it and how we stop it happening again is something that you will almost certainly never get everyone to agree on.

The man accused of driving the car is Dimitrious Gargasoulas. He was charged yesterday.

The court process will now take place and we will have to wait and see whether Gargasoulas is guilty. He must get a fair trial and I am confident he will.

But his guilt or innocence aside, the fact that he was on bail when he is alleged to have committed this offence has put the spotlight on bail laws and the system that implements those laws.

Just like when the Victorian public demanded — often through this newspaper — changes to the parole system in the wake of the murder of Jill Meagher by Adrian Bayley, the tragic events in Bourke St might result in improvements and changes to the bail system.

Premier Daniel Andrews has announced new magistrates and a “night court” to deal with out-of-hours bail hearings — and a review of the bail laws. Both are good steps forward. Opposition Leader Matthew Guy jumped in too, demanding changes and making sensible suggestions.

Something must change. But what exactly should change is the real question.

It’s important to note that bail is very different to parole. Parole is what a criminal gets after serving less than their maximum sentence. They go on parole when they get out.

Jill Meagher, who was murdered by Adrian Bayley.

Bail is what you get before you’ve been before the courts. So bail is to stop innocent people having to sit in jail waiting for their cases. But sometimes guilty ones get out on bail too. The struggle is balancing the need to ensure people who might be guilty of crimes don’t get out of jail while still allowing those that might be innocent not having their lives ruined by sitting on remand for a year or two waiting for your case to be determined.

There’s an old saying in the law that it is better a thousand guilty men go free than one innocent man be convicted. And that concept pervades the criminal law. It’s why trials are often said to be tipped in favour of defendants. And it’s why people get bail from time to time when the community — if asked — might not be comfortable with the granting of bail.

Former Supreme Court judge Paul Coghlan will conduct the review announced by the Premier.

Justice Coghlan is a smart man and a former director of public prosecutions. I hope he thinks outside the box in coming up with solutions. There’s plenty he could recommend. Here are four things that should underpin any bail overhaul:

IF a person is charged with a serious offence, the presumption is that they don’t get bail and they wear the onus of convincing a magistrate or judge they should get bail;

IF a person has a conviction for a serious offence, they can’t get bail if they’re charged with a later serious offence;

IF a person does get bail while charged with a serious offence, they should be automatically required to have regular drug and alcohol test as part of their bail conditions; and

IF a person has ever previously breached a bail condition (for any type of offence) they go back inside and are never entitled to bail for a serious offence in the future.

Dimitrious Gargasoulas was charged on Monday.

The Opposition’s suggestions included many of these elements.

Such changes would see more people on remand. We need to do whatever it takes to make sure our prisons can hold the increased number of prisoners. Who is walking out streets should never be decided by the capacity of our jails.

Turning to the system of implementing bail laws, I like the move to start a night court to have magistrates hear bail applications at night. I like the speed and decisiveness of the decision.

Mind you, we shouldn’t think that magistrates don’t make bad decisions and that getting rid of volunteer bail justices — as much as that’s a good thing — will necessarily be a cure-all. It won’t.

Aside from the mooted changes — including mine — the most important thing is an acceptance by magistrates and judges that change is necessary — and a willingness to implement those changes. The public are demanding change and I worry that magistrates and judges might adopt the “we know better than the public” attitude that I see and hear often. It’s an attitude that pervades the legal fraternity.

Magistrates and judges have to recognise that the public — through its elected representatives — determine the law and they are just there to implement it.

Until magistrates and judges accept that, changes to the law are unlikely to bring any real change to who is walking our streets.

Justin Quill is a Melbourne media Lawyer with Macpherson Kelley which represents the Herald Sun

@justinquill