Earlier this year, the NSW Law Reform Commission (LRC) concluded that review and released a 400 page report in which it recommended that the general presumption in favour of bail be reinstated after many years of piecemeal changes which have reversed or muted that presumption.
Unfortunately, if Smith was showing liberal tendencies last year, his promise as a reformer was by then fast receding. This week it was reported that under pressure from the police, he is to fast track changes to the bail laws to reverse an entirely sensible decision of Justice Peter Garling of the Supreme Court made last February.
In that case, Lawson v Dunlevy, Jeremy Lawson, who had been arrested for a domestic violence offence, challenged a bail condition which required him not to drink alcohol, but also required his submission to a "breath test when requested by a police officer".
Garling, after commenting that "an individual could be tested every 15 minutes" if this provision was lawful, struck down the breath test requirement as contrary to the legislative scheme of the NSW Bail Act. He had no problem with the "no drinking" part of the condition.
This resulted in the State's Chief Magistrate advising his colleagues of his view that, in addition, curfew condtions where offenders must present themselves whenever a police officer comes to their front door, were invalid as bail conditions, in light of Garling's analysis. On that reasoning "no alcohol" or curfew conditions can be imposed, but added conditions compelling accused persons to frequently prove they are complying, are not.
The Legal Aid Commission in its submission to the LRC referred to a case of regular late night/early morning visits by police officers to the home of accused juvenile demanding to see her. This occurred on an average of five nights per week.
These conditions are wide open to arbitrary police action and abuse. It is therefore surprising that Smith should this week announce that he intends to expedite changes to overcome Garling's decision. The LRC's report said that if such conditions are re-imposed they should be clearly limited, so as not to be onerous.
Earlier, Smith had indicated he would consider the LRC report over a number of months and respond by the end of the year.
If onerous bail conditions are reintroduced this would be his fourth departure from a more enlightened approach to criminal justice by Smith. The first was the re-enacting of the so called bikie legislation, previously struck down by the High Court, under which any club or association can be "declared" — the result being that its members can have control orders imposed on them which prevent association with any other club member, regardless of whether either has committed criminal offences.
The second regression occurred with the new consorting laws, an outrageous reversion to the pre-1980s position under which entirely innocent people can be arrested for association with persons convicted of relatively minor criminal offences.
The third is the proposed abolition of the right to silence for criminal suspects, a disgraceful and unnecessary removal of an elemental right.
Why Smith has retreated from a more liberal justice agenda is an interesting question. Perhaps it is the Alan Jones/Ray Hadley tirades, or the influence of Mike Gallacher, the Police Minister, a former police officer himself who is said to hold great sway in cabinet, or the populist instincts of Barry O'Farrell who is yet to utter a liberal thought in the first 18 months of his premiership.
What should the government be doing? The law of bail is an ancient one and the first legislature to enact a statute was way back in 1275 when the English Parliament passed the Statute of Westminster of that year. That statute with amendments, continued in effective operation for more than 550 years, with the key determinant of the bail decision being the likelihood of the accused attending court for trial.
In NSW, these laws were adopted by the colonial courts and incidentally, would have been applied in the 1830s by the state's first crown prosecutor, Frederick Garling — incredibly a direct ancestor of Peter Garling, the current judge. In 1979, the Bail Act was passed to provide comprehensive bail laws, but reflecting the same ancient principles.
So what should the law of bail encompass in the 21st century? As a matter of international law, 167 countries including Australia have agreed to adopt a principle that it "shall not be a general rule that persons awaiting trial will be detained in custody..." — Article 9 of the International Covenant on Civil and Political Rights. That phrase is interpreted to require a presumption in favour of bail.
That principle derives from the right to liberty and the presumption of innocence. Those rights need to be balanced against the competing rights of individuals and the community generally to be protected from accused persons likely to commit later offences or who are likely to fail to appear at their trial.
The LRC report suggests that there be a general presumption of bail, but the circumstances of each accused person be considered. In appropriate cases bail can be refused where the danger to an individual or the community generally or the likelihood of the person not attending court for a trial, is high.
However, why is it reasonable for police to have power to harass people presumed to be innocent with frequent visits to their homes to check on their whereabouts or administer a breath test?
But the broader question is whether or not the major parties in NSW can throw up people determined to stand up for fundamental principles, in the face of eternal police demands for more powers.
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