Civil Liberties’ lawyer Terry O’Gorman said the aptly described “extraordinary change”[1] proposed to the bail system reversing the onus of the proof and forcing alleged perpetrators to prove to a Magistrate or Judge that they should be given bail is unnecessary and would see alleged perpetrators spend many months on remand before their cases are heard, some of whom will be found not guilty.

“Denial of bail is a significant factor causing overcrowding in Queensland jails” Mr O’Gorman said.

Mr O’Gorman said that research sponsored by the Australian Criminology Research Council shows that over the last 5 years unsentenced prison numbers in Australia have increased by 81%.  This trend has been properly described as socially irresponsible and unsustainable[2].

Mr O’Gorman said the existing Bail law which gave Magistrates powers to adjourn a bail hearing to allow the mental health of an accused to be comprehensively assessed could be extended to serious domestic violence offenders while still keeping the onus of proof to convince a Court that a domestic violence accused should be refused bail on the prosecution.

“To shift the onus of proof for bail release to an accused person is to further aggravate the significant, indeed huge, inequality of arms (resources) between the Prosecution and the Defence” Mr O’Gorman said.

“The overwhelming number of domestic violence bail applications are done by overworked and under resourced Legal Aid Duty Lawyers where often a whole squad of police have had many hours to put together a case overnight before a domestic violence accused first faces Court” Mr O’Gorman said.

Mr O’Gorman said that while the Teresa Bradford tragedy cannot and should not be ignored, one bail hearing that resulted in her alleged killer being granted bail does not demonstrate a systemic problem with the domestic violence bail system.

“False allegations of domestic violence are frequently made including to advance the Family Court cases of warring spouses.  Shifting the onus of proof on domestic violence bail hearings will further aggravate the problem and cause innocent domestic violence accused to spend many long months in jail only to be acquitted or have the case later dropped” Mr O’Gorman said.

 

By Terry O’Gorman

2 February 2017

[1] See Courier Mail, Thursday 2 February 2017 “Review to place onus on accused”.

[2] See Rick Sarre, Professor of Law University of South Australia – The Conversation – 23 January 2017.  Note alsothe Australia wide figures are applicable to Queensland.