Following the Bourke Street rampage it is understandable to be angry and worried about the state of our criminal justice system. But calling for tougher conditions for bail is not the answer.
Yesterday, James Gargasoulas mowed down twenty five people with his car in Melbourne’s CBD killing at least four, including a child. I was on Swanston Street, scrolling through initial (and inaccurate) Twitter reports about a possible active shooter or terrorist event. It was scary.
I understand the anger. I don’t have a nationalistic bone in my body, but I am incredibly territorial about my city. This should not happen here.
However, a narrative is being painted about yesterday’s events that are likely to have implications to the detriment of our criminal justice system and our values. We are Melbournians: we pride ourselves by our considered response to complex social issues, let’s not stop now.
It is now well documented that Gargasoulas had a long history of poor mental health and violence. At the time he committed his acts, he was on bail after being charged last week with a (currently undisclosed) offence.
This has lead John Silvester, a writer I otherwise respect, to say this in The Age:
The attack on pedestrians by an allegedly known violent, charged offender with a history of drugs abuse and mental health problems will lead to calls for the bail structure to be scrutinised in the same way.
There will be outrage and calls for major reforms. And this time the law makers will be forced to listen.
A call to make bail “tougher” is the inevitable consequence of media framing this issue as the fault of renegade Magistrates and Bail Justices with too much compassion for criminals. The same thing happened with Parole conditions following the tragic death of Jill Meagher.
However, our bail laws do not need reforming. Indeed, they are exceptionally good as they are. This issue, like so many political issues, is far more complex.
Let’s look at Victoria’s bail laws.
As we live in a liberal democracy, there is a prima facie entitlement for bail for all charges except for those charged with “exceptional circumstance” or “show cause” offences.
Exceptional Circumstance Offences
Exceptional circumstance offences are the typical charges you wouldn’t expect someone to get bail for: murder, treason, terrorism etc. But they also include charges of large scale drug importation or trafficking.
You will almost never get bail if charged with these offences.
Show Cause Offences
Show cause offences include charges that indicate a person may pose a risk to the public. These include: breaches of family violence orders, stalking, aggravated burglary and many drug offences.
For these offences, the default assumption is that bail will not be granted unless the person charged can prove they don’t pose any risk to the public. If an offender doesn’t have the resources to adequately fund a lawyer to gather material, odds are you will not get bail for a show cause offence.
Entitled to Bail Unless Proven to be Unacceptable Risk
For all other offences, entitlement to bail is presumed except when a Court believes a person poses an “unacceptable risk”. A person will be an “unacceptable risk” if there is a risk they will:
- Fail to surrender themselves into custody to answer bail;
- Commit an offence whilst on bail;
- Endanger the safety or welfare of members of the public whilst on bail; or
- Interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
If any of above applies, then bail will be refused.
Conditions Placed on Bail
Even if bail is granted, this does not mean that someone is completely left up to their own devices. Often a surety is required and certain conditions can be placed on bail to ensure compliance, including:
- Reporting to a police station;
- Residing at a particular address;
- A curfew of no more than 12hours in a 24 hour period;
- To not contact specified persons;
- To surrender of passport;
- To not attend certain geographical zones at certain times;
- To attend and participate in a bail support service;
- To not drive a motor vehicle or not carry passengers when driving;
- To not consume alcohol or use a drug of dependence;
- To comply with existing intervention orders;
- Anything else a Court views as appropriate.
Breaching any condition on bail will lead a person to be taken into custody and charged with a separate offence of breaching bail conditions. It is a strong and clear deterrent against breaching bail.
As I hope is clear, the law in regard to bail is incredibly robust and meets the expectations of the community in terms of assessing risk, classifying offences and ensuring basic freedoms. To repeat: there is no need to reform bail laws.
So why do people like Gargasoulas fall through the cracks? Because nobody has the time or resources to adequately assess risk. Prosecutors, defence lawyers, bail justices, law enforcement and Magistrates are constantly under the pump in the current system.
Often all a Court will have to assess risk and grant bail is a summary of charges: no independent psych evaluations, no understanding of context, no objective measure of “risk”. Prosecutors have to pick their battles. Legal aid lawyers don’t have any incentives (or time, or resources) to think ‘therapeutically’ about the needs of their client long term.
It appears clear now that Gargasoulas had a serious mental health problem that had manifested in violent ways. Why wasn’t this picked up? Where were integrated mental health services? Probably buried under a mountain of case work. Did the Police provide any information to prosecutors about risk? Do they have time to perform their own risk assessments? Probably not.
This is an issue of resources, lack of sophistication and funding – not laws which preference the rights of criminals over the public. My fellow Melbournians, let’s not fall for reactionary commentary about this issue and let’s encourage our lawmakers to have a considered response to these tragic events.