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23 July, 2007  

Fabulous Phil Ruddock is talking about tightening the rubber paragraphs of the bail law in terror cases. To keep presumed innocents like Dr Haneef locked-up the AG might have to devise a much stricter “exceptionally exceptional” exception

imageIn May this year, retiring South Australian Supreme Court Justice John Perry observed, “Criminal trials have become longer and longer, with no indication that this has improved the quality of justice”.

In July 2004 Justice John Dunford of the NSW Supreme Court said, “I believe that people will continue to commit offences, a lot of them will be charged, their trials will get longer, and in particular the summings-up will get longer as more and more directions are required, a large number of those tried will be convicted, and nearly all of them will appeal to the Court of Criminal Appeal”.

In February last year, Lord Carter of Coles said that in England, “substantial recent increases in criminal defence expenditure do not appear to have been matched by a proportionate increase in the volume of cases, suggesting that more is paid today per case, than has been so in the past”.

No doubt the same is true in Australia.

In July 2004 US academics Paul Mahoney and Chris Sanchirico pointed out (in a different context but the general ideas are relevant) that:

“One of the fundamental conundrums of the administrative state is how to attain the expertise necessary to determine the detailed rules to govern a particular industry or activity… In order to obtain sufficient information to determine how to solve the particular problems to which the regulatory system is addressed, the legislature or administrative agency must draw on the expertise of the regulated industry.”

Lawyers have devised bail law and bail procedure (there may be little difference between the two) and they administer it. One doubts whether parliament pays much attention to the subject except when someone on bail commits an offence – I won’t say “further offence”, although it is surprising how often one comes across that.

If the NSW parliament was paying attention to bail law, it would hardly have legislated s.13 of its Bail Act: “Eligibility for bail despite no entitlement”.

The biggest threat to the lucrative trial system is bail procedure. Of necessity, bail hearings have to be short. Minutes or hours, rather than days, although such frugality is now on the way out, with Victorian lawyers leading the way. As a general rule there is little time for all the procedural nonsense that has been injected into the trial process, so inadmissible evidence is allowed in and previous convictions can be freely talked about.

In other words, bail procedure is far more open to the question, “what is the truth here?” than the trial process is ever going to be. Which is why that question is banned. Not that this is done overtly. Indeed, tucked away among the “entitlement to bail” criteria will be a reference to the “strength of the evidence”, but that is not allowed to evolve into, “does it look like (s)he did it?”

Getting into that would mean getting into the truth, and getting into the truth so early on and so quickly would set a terrible precedent for the trial process. People would say why can’t trials be like this? And why isn’t the bail hearing incorporated into a dossier for us to read at trial? And when at trial what does the accused say the defence was, back then? Or wasn’t there one on offer, because one hadn’t been invented at that point?

While not suggesting that we go back to Old Bailey trial processes of 1833, when the average jury trial took eight-and-a-half minutes, trials that go on for weeks represent blatant abuse of the system. Another question that is banned at bail time is: if you are not guilty of drug trafficking then how come, despite your nil tax returns, you can afford all those gold plated QCs?

The legal profession achieves that ban without writing down a rule anywhere. Such is the power of legal culture. Incidentally, the most forbidden question in our entire legal system must be asking a lawyer, “how much are you being paid to say that?” Of course, everyone else can be asked it.

So, in order to keep the issue of guilt alive for as long as possible, our bail procedure carefully steers clear of likely guilt (or otherwise), when that should be the FIRST consideration. In March 2005 the NSW DPP said:

“The principal considerations in granting bail are:

  • is the accused likely to appear at court on the next occasion?
  • is there a likelihood of further offending if released on bail?
  • is there a likelihood of interference with evidence/witnesses if released on bail?”

    The first one, which is the main one, is of little use to an innocent suspect, who is the person bail procedure should be trying to protect.

    imageJeremy Bentham (seen here) wrote that, “The power of the lawyer is in the uncertainty of the law”. From the legal profession’s viewpoint, the more uncertainty there is in the law, the better, and the uncertainty should last as long as possible.

    Given that both lawyers and judges want to maximise the law’s “discretion”, and given that the government can’t be seen to impose outright bans on bail applications in criminal cases, bail law has been forced to fall back on a complex system of entitlements to bail and “presumptions” in favour of bail or against it, which can be displaced by “exceptional circumstances” and the like. The sort of breakfast even a dog would turn down.

    Parliament has legislated that in terrorism cases a bail authority must not grant bail unless the bail authority is satisfied that exceptional circumstances exist to justify bail. What is that supposed to mean when the criteria for bail largely leave “likely guilt” out of the picture?

    imageThe public is now itself venturing into a “likely guilt or innocence” debate in the Haneef case, with lots of talk about a SIM card. The lawyers are talking about the presumption of innocence, but bail is all about whether to lock-up a person who is deemed innocent, so that doesn’t doesn’t help a lot.

    According to press reports, when Jacqui Payne granted bail to Dr Haneef, she cited: “a list of High Court precedents to rule that his bid met the ‘exceptional circumstances’ required.”

    One doubts whether they directed her to focus on likely truth, which is not to say that she didn’t do that.

    The last word belongs to the attorney general who now says bail “law” may need to be tightened up. Bail law is expressed in what the Germans call gummiparagraphen (rubber paragraphs), which maximise discretion and uncertainty in all directions. What an interesting exercise the AG is embarking on. How does one tighten up gummiparagraphen? Perhaps the law could be amended to “exceptionally exceptional”.

    The more uncertain the law, and the more convoluted the procedures, then the more money lawyers can make – and lawyers aren’t going to roll over on this one. While legislators have a little bit of control over the law, they have no control over procedure, and as US Congressman John Dingell somewhat inelegantly said at a congressional hearing in 1983:

    “I’ll let you write the substance … and you let me write the procedure, and I’ll screw you every time.”


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