Domestic and Family Violence and the Approach to Bail

Emily Ng | Bio
law graduate at Cooper Grace Ward Lawyers
Heather Douglas   | Bio
an Australian Research Council Future Fellow and a Professor at the TC Beirne School of Law, University of Queensland
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Abstract

A number of jurisdictions in Australia have introduced special provisions that either displace or reverse the presumption in favour of bail where domestic and family violence offences are alleged. This article examines the different approaches taken to bail in domestic violence cases across Australia in order to consider how to strike the best balance between protecting victims of family violence and upholding the rights of the accused. This article concludes that many of the legislative changes to bail presumptions are unjustified and that the safety of victims can be sufficiently protected by a focus on the basic assessment of whether the risk that the accused will harm the victim is unacceptable, and on a careful consideration and appropriate tailoring of the conditions of the bail grant.

References

1 Richard Noone, ‘Accused Man Allegedly Killed Ex and Contravened an Apprehended Violence Order’, The Daily Telegraph (online), 14 January 2013 .
2 Adam Cooper, ‘Luke Batty Inquest: No Urgency to Hold Dad Greg Anderson in Custody, Say Police’, The Age (online), 1 December 2014 .
3 Ibid. Also note, in March 2015, Greg Thompson was arrested for the stabbing death of his ex-wife’s boyfriend, Michael Moad. At the time of the stabbing Thompson was on bail for charges relating to intimidation of his ex-wife and her new partner and breaching an apprehended violence order. Dan Proudman, ‘Accused Killer Was on Bail: Charged Twice Before Stabbing’, Newcastle Herald (online), 2 March 2015 .
4 Bail Act 1980 (Qld) s 9; Bail Act 1985 (SA) s 10; Bail Act 1977 (Vic) s 4; Bail Act 1992 (ACT) ss 8-9; Bail Act 1982 (NT) s 8. In Tasmania, there is a common law presumption in favour of bail: see R v Fisher [1964] Tas SR 318.
5 See, generally, New South Wales Law Reform Commission (NSWLRC), Bail, Report No 133 (2012) 65.
6 Bail Act 1985 (SA) s 10A; Bail Act 1977 (Vic) s 4(4)(ba); Bail Act 1982 (WA) Sch 1 Pt C cl 3B; Bail Act 1992 (ACT) s 9B(iv); Bail Act 1982 (NT) s 7A(1)(dd), (dh), where special provisions apply where the accused breached a protective condition while on bail.
7 See, for example, Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws, Report No 104 (2014) 134; Victorian Law Reform Commission (VLRC), Review of the Bail Act: Final Report (2007) 120.
8 See Bail Act 1977 (Vic) s 5(2A)(d); Bail Act 1992 (ACT) s 25(f)(i); Bail Act 1982 (NT) s 27A(1)(a)-(c).
9 See Bail Act 1985 (SA) s 11(2)(a)(ii); Bail Act 1994 (Tas) s 5(3A)(b); Bail Act 1977 (Vic) s 5(2A)(f); Bail Act 1992 (ACT) s 25(4)(f)(ii)-(v) in relation to police bail.
10 Bail Act 1985 (SA) s 21B; Bail Act 1982 (WA) Sch 1 Pt D cl 2(2b);.
11 Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response Final Report, Report No 114 (2010) (ALRC/NSWLRC Report).
12 Ibid [22], [420].
13 NSWLRC, Bail, above n 5; Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015) 48 (Not Now, Not Ever Report); Law Reform Commission of Western Australia (WALRC), Enhancing Family and Domestic Violence Laws: Final Report, Project No 104 (2014). See also VLRC, Review of Family Violence Laws: Report (2006) 118-119.
14 Australian Bureau of Statistics, 4906.0 – Personal Safety, Australia, 2012 (2013) .
15 Andy Chan and Jason Payne, ‘Homicide in Australia: 2008-09 to 2009-10 National Homicide Monitoring Program Annual Report’ (Monitoring Report No 21, Australian Institute of Criminology, 2013).
16 Not Now, Not Ever Report, above n 13, 47-48; Queensland Government, Premier’s Special Taskforce on Domestic and Family Violence in Queensland (2014) .
17 Sentencing Advisory Council (Vic), Family Violence Intervention Orders and Safety Notices: Sentencing for Contravention (Monitoring Report, 2013).
18 Department of Social Services (Cth), The National Plan to Reduce Violence against Women and their Children 2010-2022 (2014) .
19 See, generally, Donna Coker, ‘Race, Poverty, and the Crime-Centred Response to Domestic Violence’ (2004) 10(11) Violence Against Women 1331, 1332; Leigh Goodmark, A Troubled Marriage: Domestic Violence and the Legal System (New York University Press, 2012) 123; Heather Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30(3) Sydney Law Review 439.
20 ALRC/NSWLRC Report, above n 11, especially Ch 8; Not Now, Not Ever Report, above n 13, 15; VLRC, above n 13, 118-119; WALRC, above n 13, 127. Note in February 2015 the Royal Commission into Family Violence commenced in Victoria: Tracey Matters, Royal Commission Begins Community Consultations (10 April 2015) Royal Commission into Family Violence . It was originally due to report in February 2016 with an extension granted until March 2016 and has a very broad ambit.
21 Bail Act 2013 (NSW) ss 17-20; Bail Act 1980 (Qld) s 9. Note pursuant to s 16(3) Bail Act 1980 (Qld) a reverse onus applies to bail in the context of some serious offences including offences with a maximum penalty of life imprisonment and offences against the Bail Act; similarly see the Bail Act 2013 (NSW) ss 16A and 16B.
22 Bail Act 2013 (NSW) s 17; Bail Act 1980 (Qld) s 16.
23 Note that in the case of certain serious indictable offences the defendant is placed in a show cause situation, and such offences may be committed in the context of domestic violence; see Bail Act 2013 (NSW) s 16B; Bail Act 1980 (Qld) s 16(3). See also Bail Act 2013 (NSW) s 18(1)(f) where the defendant’s history of compliance with apprehended violence orders will also be considered.
24 Bail Act 1992 (ACT) s 9B.
25 Re Islam (2010) 175 ACTR 30, 80 [254] (Penfold J).
26 Bail Act 1977 (Vic) s 4(4)(ba).
27 Bail Act 1985 (SA) s 10A(ba).
28 Bail Act 1982 (WA) Sch 1 Pt C cl 3A.
29 Bail Act (NT) s 7A.
30 Family Violence Act 2004 (Tas) s 12.
31 See R v Iskandar (2001) 120 A Crim R 302, 305 (Sperling J); R v Seth Williams [2012] NTSC 47, [3] (Kelly J).
32 See R v Iskandar (2001) 120 A Crim R 302, 305 (Sperling J); R v Seth Williams [2012] NTSC 47, [3] (Kelly J).
33 Bail Act 1977 (Vic) s 4(4)(ba). The relevant Northern Territory provision states, ‘Bail must not be granted to a person accused of an offence to which this section applies unless the person satisfies an authorised member or court that bail should be granted’. Bail Act (NT) s 7A(2).
34 Bail Act 1985 (SA) s 10A.
35 See Taylor v Western Australia [2014] WASC 292.
36 David Pheeney, ‘“Do You Reckon I’m Gunna Get Bail?”: The Impact and Consequences of New South Wales Bail Laws on Aboriginal Juveniles’ (2012) 7(30) Indigenous Law Bulletin 3. Note also bail legislation in some Australian jurisdictions includes special provisions that require courts to consider Indigenous offenders’ cultural issues and obligations, see, for examples, Bail Act 1977 (Vic)s 3A; Crimes Act 1914 (Cth) s 15AB(3A)(a).
37 See Don Weatherburn, Wai-Yin Wan and Simon Corben, ‘Why is the NSW Prison Population Growing?’ (Issue Paper No 95, NSW Bureau of Crime Statistics and Research, 2014); Tracey Booth and Lesley Townsley, ‘The Process is the Punishment: The Case of Bail in New South Wales’ (2009) 21(1) Current Issues in Criminal Justice 41; Anthea Hucklesby and Rick Sarre, ‘Bail in Australia, the United Kingdom and Canada: Introduction’ (2009) 21(1) Current Issues in Criminal Justice 1; Cheryl Marie Webster, Anthony N Doob and Nicole M Myers, ‘The Parable of Mrs Baker: Understanding Pre-trial Detention in Canada’ (2009) 21(1) Current Issues in Criminal Justice 79; Myles F McLellan, ‘Bail and the Diminishing Presumption of Innocence’ (2010) 15 Canadian Criminal Law Review 57.
38 Weatherburn, Wan and Corben, above n 37, 1; see, generally, Chris Cunneen et al, Penal Culture and Hyperincarceration (Ashgate, 2013).
39 Francis Cullen, Cheryl Jonson and Daniel Nagin, ‘Prisons Do Not Reduce Recidivism’ (2011) 91(3) The Prison Journal 48; see generally Smart Justice, More Prisons Are Not the Answer to Reducing Crime (22 September 2014) .
40 Lucy Snowball, Lenny Roth and Don Weatherburn, ‘Bail Presumptions and Risk of Bail Refusal: An Analysis of the NSW Bail Act’ (Issue Paper No 49, NSW Bureau of Crime Statistics and Research, 2010).
41 ‘Neutral presumption’ cases were more likely to result in bail refusal than ‘presumption against’ cases, potentially because ‘neutral presumption’ cases (which involved serious sexual offences, cases of serious violence, and domestic violence cases) involved risks to particular people or the community, whereas ‘presumption against’ cases were mostly repeat property offences which posed a lesser risk to the community by release.
42 We have not examined the Northern Territory in detail as its legislation has recently been amended and there has been little discussion to date of its operation in the literature or case law. We have not examined South Australia as its application is extremely limited: pursuant to Bail Act 1985 (SA) s 10A(ba) the accused must show cause in circumstances where s/he is taken into custody in relation to an offence of breaching a protection order where the alleged offence involved physical violence or a threat of physical violence. See R v Doyle [2014] SASC 199 for a discussion of the operation of bail in family violence cases in domestic violence.
43 Bail Act 1977 (Vic) s 4(4)(b). Stalking is commonly associated with family violence, see AW Burgess et al, ‘Stalking Behaviours within Domestic Violence’ (1997) 12 Journal of Family Violence 389.
44 Bail Act 1977 (Vic) s 4(4)(ba).
45 Bail Act 1977 (Vic) s 4(4)(b)-(ba).
46 Bail Act 1977 (Vic) s 4(4).
47 DPP v Harika [2001] VSC 237 at [47] (Gillard J).
48 Bail Act 1977 (Vic) s 4(2)(d).
49 Bail Act 1977 (Vic) s 4(3).
50 Judicial College of Victoria, Family Violence Bench Book (18 January 2016) .
51 [2015] VSCA 161.
52 Ibid, [42] (Maxwell P and Redlich JA).
53 [2014] VSC 499.
54 Ibid.
55 Similarly, see Held v The Queen [2012] VSC 648.
56 Bail Act 1992 (ACT) s 9F.
57 As Derrington J observed in Williamson v DPP (Qld) [1999] QCA 356, [21]: ‘No grant of bail is risk free’.
58 Bail Act 1992 (ACT) Sch 1.
59 Domestic Violence and Protection Orders Act 2008 (ACT) ss 13, 15.
60 Tracy Cussen and Mathew Lyneham, ‘ACT Family Intervention Program Review’ (Technical and Background Paper No 52, Australian Institute of Criminology, 2012). See also Robyn Holder and Nicole Mayo, ‘What Do Women Want in Prosecuting Family Violence in the ACT’ (2003) 15(1) Current Issues in Criminal Justice 5.
61 Bail Act 1992 (ACT) s 9B.
62 (2009) 172 ACTR 2.
63 Ibid, [51]. But since Re Breen was decided see Momcilovic v The Queen (2011) 245 CLR 1, where the High Court considered a similar provision of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and found that the requirement that ‘statutory provisions must be interpreted in a way which is compatible with human rights’ referred to no more than the ordinary judicial task of statutory interpretation; that is, consideration of a provision’s terms, context and purpose.
64 Re Breen (2009) 172 ACTR 21, [52], quoting Douglas Brown, ‘Bail: An Examination’ (1971) 45 Australian Law Journal 193, 198.
65 [2014] ACTSC 234. See also R v Elphick [2014] ACTSC 372 at [9]-[12], where the neutral presumption did not apply. Although Mr Elphick had a history of family violence, the only conviction on his record at the time was for being an accessory after the fact, which was not considered an offence of actual or threatened violence.
66 WALRC, above n 13, 135-136.
67 Ibid (Recommendation 48).
68 Ibid, 135.
69 The importance of appropriate bail conditions in domestic violence cases is discussed further below, but see Bail Act 1982 (WA) s 17.
70 Bail Act 1982 (WA) Sch 1 Pt C cll 3A, 3B. The full list of serious offences is set out in Sch 2.
71 Bail Act 1982 (WA) Sch 1 Pt C cl 3B(2).
72 Bail Act 1982 (WA) Sch 1 Pt C cl 3B(3).
73 [2014] WASC 292, [23].
74 Bail Act 1982 (WA) Sch 1 Pt C cl 3B(4).
75 [2005] WASC 243.
76 Gilmour v Western Australia [2005] WASC 243 at [69]. See also the difficulties faced by the applicant in Taylor v Western Australia [2014] WASC 292.
77 [2013] WASC 295.
78 Ibid.
79 The recommendation that criminal records should clearly identify domestic violence-related offences has been made by a number of Law Reform Commission reports. See Not Now, Not Ever Report, above n 13, 305; ALRC/NSWLRC Report, above n 11, 542.
80 Department of Justice and Industrial Relations, Safe at Home: A Criminal Justice Framework for Responding to Family Violence in Tasmania (2003) 25.
81 Ibid, 4.
82 Family Violence Act 2004 (Tas) s 12.
83 Family Violence Act 2004 (Tas) s 4.
84 Family Violence Act 2004 (Tas) s 7(a).
85 Family Violence Act 2004 (Tas) s 7(b).
86 [2005] TASSC 27 (21 April 2005) at [13].
87 Ibid.
88 Urbis, Review of the Family Violence Act 2004 (Tas) (March 2008) 13 (prepared for Department of Justice, Tasmania).
89 Tasmania, Parliamentary Debates, House of Assembly, 18 November 2004, 119-194 (Judith Jackson, Attorney-General and Minister for Justice and Industrial Relations).
90 See Re S [2005] TASSC 89 (19 September 2005) (Slicer J); Olsen v Tasmania [2005] TASSC 40 (13 May 2005) (Underwood CJ).
91 [2005] TASSC 40 (13 May 2005).
92 Ibid, [3].
93 Ibid, [10].
94 Urbis, above n 88, 15.
95 This approach resembles the approach criticised and ultimately rejected by Justice Bell in Victoria, see Woods v DPP (Vic) [2014] VSC 1 (17 January 2014).
96 Urbis above n 88, 16.
97 Ibid, 4.
98 Ibid, 6.
99 In the Australian Capital Territory, the definition of ‘domestic violence offence’ is contained within the dictionary of the Bail Act 1992 (ACT) and relates to police bail only s 9F.
100 See Bail Act 1992 (ACT) s 9B, where, although there is a presumption against bail for the offences of threat to kill, threat to inflict grievous bodily harm, stalking, and contravention of a protection order, the general presumption in favour of bail is retained for violent offences that are common to family violence contexts, including assault occasioning actual bodily harm.
101 Bail Act 1985 (SA) s 10A; Bail Act 1977 (Vic) s 4(4)(ba); Bail Act (NT) s 7A(1)(dh).
102 ALRC/NSWLRC Report, above n 11, [10.24].
103 Ibid, [10.33].
104 See Bail Act 1985 (SA) s 10A; Bail Act 1977 (Vic) s 4(4)(ba).
105 ALRC/NSWLRC Report, above n 11, [10.19].
106 See Re Application for Bail – P I [2014] VSC 64 at [64] (Hollingworth J); Taylor v Western Australia [2014] WASC 292 at [34] (Hall J); Held v The Queen [2012] VSC 648 at [25] (Curtain J).
107 See David Brown, ‘Looking Behind the Increase in Custodial Remand Populations’ (2013) 2 (2) International Journal for Crime Justice and Social Democracy 80.
108 Ibid, 85.
109 Ibid.
110 Ibid.
111 Ibid.
112 ALRC/NSWLRC Report, above n 11, [10.41].
113 Ibid, [10.42].
114 Ibid, [10.49].
115 Ibid, [10.48].
116 WALRC, Court Intervention Programs: Final Report, Project No 96 (2009) 97.
117 Ibid.
118 ALRC/NSWLRC Report, above n 11, 425 (Recommendation 10-2); WALRC, above n 116, 6 (Recommendation 28).
119 Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines (at 1 June 2007) appendix E, cl 3.2; Office of the Director of Public Prosecutions (Qld), Director’s Guidelines (at 1 August 2014) guideline 25(i)(d).
120 Tilse v New South Wales [2013] NSWDC 265, [130] (Neilson J).
121 See, for example, WALRC, Enhancing Family and Domestic Violence Laws, above n 13, 134.
122 ALRC/NSWLRC Report, above n 11, [11.165]; to address this concern, the ALRC/NSWLRC recommended government funding for emergency housing, see [11.226]; it also indicated that exclusion conditions are more effective when the accused is helped to find alternative accommodation because the accused is less likely to return to the family home or be invited back by a sympathetic victim, see [11.197]. See also Rachael Field, Belinda Carpenter and Susan Currie, ‘Issues in the Making of Ouster Orders Under the Domestic Violence (Family Protection) Act 1989 (Qld)’ in John Dewar and Stephen Parker (eds), Family Law Processes, Practices and Pressures (Hart Publishing, 2003) 99.
123 ALRC/NSWLRC Report, above n 11, [11.229].
124 VLRC, above n 13, 123. See also, generally, Brown, above n 107, and Arie Freiberg and Neil Morgan, ‘Between Bail and Sentence: The Conflation of Dispositional Options’ (2004) 15(3) Current Issues in Criminal Justice 220.
125 VLRC, above n 13, 62. For an example of a case where several onerous exclusion conditions were imposed, see Re Anderson [2011] ACTSC 121 (Refshauge J).
126 See Bail Act 1980 (Qld) s 29; Bail Act 1985 (SA) s 17(1); Bail Act 1994 (Tas) s 9; Bail Act 1977 (Vic) s 30A; Bail Act 1982 (WA) s 51(2a); Bail Act 1982 (NT) s 37B.
127 VLRC, above n 13, 62.
128 Ibid, 124 (Recommendation 95). See Bail Act 1980 (Qld) s 11(1), (5); Bail Act 1977 (Vic) s 5(4); Bail Amendment Act 2010 (Vic) s 8.
129 Julie Stewart, ‘Specialist Domestic Violence Courts: What We Know Now – How Far Have Australian Jurisdictions Progressed? (Topic Paper 20, Australian Domestic and Family Violence Clearinghouse, 2010) 1.
130 VLRC, above n 7, 121.
131 Tracy Cussen and Mathew Lyneham, ‘ACT Family Intervention Program Review’ (Technical and Background Paper No 52, Australian Institute of Criminology, 2012) 10.
132 Ibid, 64. These low figures suggest that the program is rarely imposed at the bail stage.
133 Legal Service Commission of South Australia, Family Violence Court (2012) .
134 Department for Correctional Services (SA), Abuse Prevention Program (2010) ; Court Administration of South Australia, Court Intervention Programs (2012) .
135 WALRC, Court Intervention Programs: Consultation Paper, Project No 96 (June 2008) 129-139; see also Bail Act 1982 (WA) Sch 1 Pt D cl 2(2b).
136 WALRC, above n 116, 94.
137 See, generally, Stewart, above n 129, 7.
138 VLRC, above n 7, 121.
139 Ibid, 122.
140 WALRC, above n 116, 94.
141 Ibid.
142 Thea Brown and Ralph Hampson, An Evaluation of Interventions with Domestic Violence Perpetrators (Monash University Printing, 2009).
143 See Edward W Gondolf, ‘Evaluating Batterer Programs: A Different Task Showing Some Effects and Implications’ (2004) 9 Aggression and Violent Behaviour 605, 609.
144 Liz Kelly and Nicole Westmarland, Domestic Violence Perpetrator Programmes: Steps Towards Change. Project Mirabal Final Report (London Metropolitan University and Durham University, 2015) 22.
145 Gondolf, above n 143. See also Heather Douglas, ‘Not a Crime Like Any Other: Sentencing Breaches of Domestic Violence Protection Orders’ (2007) 31 Criminal Law Journal 220, 226.
146 ALRC/NSWLRC Report, above n 11, 419.
147 See, for example, Pheeney, above n 36; Olsen v Tasmania [2005] TASSC 40 (13 May 2005) (Underwood CJ); Re S [2005] TASSC 89 (19 September 2005) (Slicer J).
148 Snowball, Roth and Weatherburn, above n 40, found that the Indigenous status of defendants was a risk factor for bail refusal. However, the authors noted that the study probably failed to control for several important bail considerations, such as a defendant’s community ties and previous failings to appear in court.
149 ALRC/NSWLRC Report, above n 11, 420.
150 VLRC Report, above n 7, 38.
151 See, for example, Held v The Queen [2012] VSC 648 (4 December 2012).
152 Re Application for Bail – P I [2014] VSC 64.
153 J Herman, ‘Justice from the Victim’s Perspective’ (2005) 11(5) Violence Against Women 571.
154 R v Christodoulou [2005] NSWSC 1362 (15 December 2005) at [16].
155 Kelly and Westmarland, above n 144.
156 See, generally, Kelly Richards and Lauren Renshaw, ‘Bail and Remand for Young People in Australia: A National Research Project’ (Research and Public Policy Series No 125, Australian Institute of Criminology, 2013).
How to Cite
1.
Ng E, Douglas H. Domestic and Family Violence and the Approach to Bail. LiC [Internet]. 2018Dec.17 [cited 2024Feb.21];34(2). Available from: https://journals.latrobe.edu.au/index.php/law-in-context/article/view/39

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