The Process as Punishment

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This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 166-192.

Introduction

[1] The traditional view is of a clear distinction drawn between pre-trial processes (which are investigatory and administrative) and trial processes (which determine responsibility and sentence).

  • In theory, punishment only comes after the formal judicial determination.
  • However, the processes of justice (eg, arrest, detention, pre-trial custody etc) which precede any formal adjudication of guilt already constitute a significant punishment.
  • In particular, in terms of summary proceedings whereby the penalty is often a small monetary sum, the process is a far more significant form of penalty (eg, being in court all day is worse than receiving the $100 fine at the end).

Punishment Without Trial - Police as a Penal Agency

[2] In 1988 there was a Royal Commission into Aboriginal Deaths in Custody.

  • The custody survey carried out by the Royal Commission was unique in that it examined detention under police custody:
    • Difference between police custody and prison: Police custody occurs immediately after the charge/alleged offence and before the court appearance.
    • After fingerprinting etc, the senior sergeant must make a valid decision whether to release on bail or keep in police custody.
    • If kept in custody, the accused must be taken before a court as soon as practicable.
    • The court then makes a court bail determination.
  • The vast majority of those in detention in police cells are for petty offences, especially marked in the case of Aboriginal communities.
  • The Royal Commission found that between 1980 and 1988, 60% of Aboriginal deaths in custody occurred in police custody, as opposed to in prison (meaning they died before trial).
  • This is an illustration of how the process already punishes those accused, before they stand trial.

Two aboriginal deaths in custody were particularly concerning: Mulrunji and Mr Ward.

Mulrunji

[3] The police were arresting some man named Patrick Bramwell, when an aboriginal man named Mulrunji made some comments at them. The police proceeded to arrest him, he resisted arrest, and died in custody.

  • Firstly, it should be pointed out that there was no reason to arrest Mulrunji - he didn't really do anything which justifies an arrest and he was not generally a troublemaker.
  • In the case of a death in custody, the law requires a proper investigation, conducted by the independent State Homicide Investigation Group. This didn't happen, and the investigation which was conducted was of poor standards. The investigators were pretty much friends of the suspect officer, and were picked up by him from the airport and had dinner at his house.
  • The cause of death is known as intra-abdominal hemorrhage, caused by a forceful impact. It is hard to determine exactly how the force came to be applied, since there is no bruising which would be present if he was beaten to death.
    • The closest the coroner could come to a determination is that the officer probably fell on top of Mulrunji in the struggle to bring him into the station, and that force caused his death. There was some beating as well.
  • The contention is that no individual should be subjected to such conditions, given the context that Mulrunji simply asked a liason officer why they were locking up their own people, and later used some rude language while walking away.

Mr Ward

[4] The death of Mr Ward, an Indigenous elder, raised significant questions regarding the police decision to arrest and charge, and bail procedure. The investigation into the death found out the following information:[5]

  • Mr Ward was in police custody following his arrest in relation to traffic offences.
  • He was refused police bail, and subsequently a lay Justice of the Peace (JP) held a court bail hearing, at which bail was also refused.
    • Issues with the denial of police bail.
    • The court bail hearing conducted by the JP was extremely poor, with the JP clearly having limited knowledge of his role and the Court not being convened in accordance with the law.
  • As such, Mr Ward was being transported to Kalgoorlie for prison custody. The conditions of transport were absolutely appalling: he was in the 'cell' of the car, with no air conditioning, in a 40 degree day, for over 3 and a half hours.
  • He was literally cooked alive in the cell and died from heatstroke during the transportation.
  • As a result of police practices and bail issues, Mr Ward died in a custody invoked for mere traffic offences.

Bail

[6] Bail is a police or court authorisation that provides for an accused person to be at liberty instead of in custody.

  • Bail is largely discretionary.
  • The primary consideration when granting bail is whether the person charged will return to court to face the charges, or abscond (fail to show).

Issues relating to bail and the refusal to grant bail include:

  • Potentially fatal consequences of refusing to grant bail (e.g. Mr Ward)
  • The issue of the process as punishment and undermining the presumption of innocence (being in custody is clearly punishment before being declared guilty).

The 1978 amendments to the Bail Act 1978 (NSW) attempted to move away from the reliance on cash bail in NSW, which discriminates against the poor and disadvantaged such as the unemployed, juveniles and Aborigines.

  • This led to an increase in the grant of unconditional bail, without requiring the deposit of cash or security as a condition of bail.
  • However, juveniles, the unemployed and unrepresented accused all have higher rates of bail refusal and conditional bail.

This reform period was probably the 'high point' of bail conditions. Since then, the NSW bail system has been characterised by the following developments:

  • An expanding list of exceptions to the presumption in favour of bail (ie, more instances in which there is a presumption against bail).
  • Targeting repeating property offenders by way of denial of bail.
  • Increase in non-traditional bail conditions to provide a legal foundation for serious, long-term sentencing interventions.
  • A steady increase in the proportion of the prison population on remand.
    • On remand - in detention pending trial, where bail has not been granted.

Procedure

[7] Bail may be granted at various stages in criminal proceedings, eg:

  • Police bail after charge but before court appearance.
  • Appeal bail following conviction etc.

A 'bail application' is the process by which an accused applies for bail to the police or court.

Police Bail

Following the laying of a charge, an ‘authorised officer’ must make a determination whether to grant police bail.

  • For a minor offence, there is a right of release subject to certain specified exemptions.
  • For other than a minor offence, the authorised officer is required to consider certain criteria.
  • Bail can be unconditional or subject to conditions.

Court Bail

An appeal against refusal of bail is essentially a fresh application for bail, and a request for a review of a bail decision can be made by the defendant, the police, the DPP, etc.

  • However, s 22A (1) of the Bail Act currently provides that if a court refuses bail application, then that court is to refuse a repeat bail application unless there are grounds such as a significant change in circumstances.
  • This restriction on repeat bail applications contributed significantly to an increase in remands, contributing to punitive implications, especially for children and young people.

Bail Act Scheme

[8] The four broad categories in the Bail Act regarding presumptions and exceptions to bail are:

  • A right to release on bail for minor offences.[9]
    • Ie, for offences not punishable by imprisonment, and summary offences that are punishable by imprisonment.
    • This is an absolute entitlement, as opposed to the presumption in favour.
  • A presumption against bail for:
    • Certain drug offences and terrorist acts.[10]
    • Serious firearms and weapons offences.[11]
    • Certain repeat property offences.[12]
    • Offences committed in the course of riots and other civil disturbances.[13]
    • For persons on lifetime parole who commit offences carrying prison terms,[14] and for a breach of extended/interim supervision orders.[15]
      • Note: it is stated in ss 8A – 8F that a person accused of these offences is ‘not to be granted bail unless the person satisfies the authorised officer or court that the bail should not be refused’.
  • A presumption in favour of bail for most offences excepting certain violent offences .[16]
    • Exceptions include murder, manslaughter, threats of violence, wounding with intent to do bodily harm, certain sexual offences, kidnapping, robbery and armed robbery, certain drug offences and failure to comply with a prior bail undertaking.
  • Exceptions to the presumption in favour of bail where:
    • The accused has a history of violence.[17]
    • The accused previously failed to comply with a bail undertaking, or is accused of an indictable offence and has previously been convicted of one[18]

Please refer to the actual sections of the Act (provided in thereferences) for more information.

Criteria for Bail

[19] The criteria for granting bail are specified in s 32 of the Bail Act, and refer to:

  • The probability of the defendant appearing in court
    • The authorised officer or court may take into account ‘community ties’ such as employment, family, housing arrangements etc, with the rationale being the greater the strength of ties, the lower the risk of absconding.
  • The interests of the defendant
    • For example, the need to prepare for appearance in court, the length of time they would be held in custody if bail was refused, etc.
  • The protection of any person against whom the offence was committed, or close relatives of such a person
    • For example, where the offence related to violence/domestic violence etc.
  • The protection and welfare of the community
    • For example, if the offence is of a violent or sexual nature, if the person may attempt to interfere with evidence and jurors etc.

In granting or denying bail, it has been said by the NSW Court of Appeal that the decision must not be made ‘with a punitive intent’ (ie, to exact punishment on the accused). Clearly, several punitive effects flow from denial of bail, such as deprival of freedom, separation from family etc, limited communication with legal advisors etc.

Bail conditions

[20] Bail can be granted unconditionally or subject to a number of conditions. As described in s 36 (2), these include:

  • The requirement that the accused or an ‘acceptable person’ acquainted with the accused enter into an agreement to forfeit a sum of money if the accused fails to comply with the bail undertaking (ie, fails to attend court).
  • Can also include the forfeiture of a passport, keeping away from a particular place, etc.

Breach of any conditions, or non-attendance at court, can lead to arrest and forfeiture of bail money.

The Growing List of Exceptions

[21] The initial presumption in favour of bail in the 1978 Act has been subject to a growing range of exceptions, with the creation of an actual presumption against bail for certain drug offences in 1988.

  • The exceptions seem to be political responses and responses to ‘moral panics’ and public opinion, rather than detailed empirical analysis from the Bureau of Crime Statistics.
    • For example, there no higher rate of absconding evident by those charged with armed robbery, so why the exception?[22]
  • Fear of an unfair trial resulting from a myriad of exceptions occurred from 1978. They included:
  1. in 1995 exceptions for conspiracy, threats and attempts to murder;
  2. in 2004 terrorism offences;
  3. in 2009 for a controlled member of a declared organisation associating with another controlled member of a declared organisation

The Targeting of Repeat Property Offenders

[23] The absconding rates have been determined as highest among those with prior convictions and multiple concurrent offences.

  • There has thus been a trend to reduce crime rates by selectively incapacitating a small group of repeat offenders through bail refusals, who are responsible for a disproportionate number of (particularly property) offences such as break, enter and steal.

Conflating Bail and Sentence: the Rise of Diversionary Options

[24] In recent years, there has been a blurring of the traditional concept that punishment and sentence occurs only after a finding of guilt. Instead, people are induced to accept a new range of sanctions in order to escape convictions.

  • These include community-based orders, pre-trial diversion schemes, custody of mentally disordered offenders etc.
  • Whilst these are done in the name of leniency, there are problems:
    1. Question of consent is problematic (the accused is terrified of conviction).
    2. These are essentially coercive measures, which are imposed before a finding of guilt is made.
    3. The length and severity might not be proportional to the offence committed.
    4. The consequence of a breach of such orders is sometimes worse than a conviction.
  • Bail is theoretically ‘process-oriented’ (for smooth running of the criminal process) and not ‘performance-based’ (punitive or preventative).
  • However, the courts have recently used a number of schemes such as ‘intervention program order’ as bail conditions, blurring the line between guilt, conviction and sentence.
  • Intervention programs are ostensibly intended to replace short terms of imprisonment.

Increasing Remand Rates, Punishment and More

[25] Remand in custody, or denial of bail, is a substantial pre-trial punishment.

  • There has been a substantial increase in the size of remand prisons in NSW, with 25% of total prisoners being remand prisoners.
  • Many people spend substantial periods of time in remand, ranging from months to several years, and no compensation is paid to those who are subsequently acquitted.
  • Deprivation of income, loss of employment etc are effects of being held on remand.
  • There are high rates of acquittal for those held on remand, which is concerning (ie, they were not guilty yet suffered). Around 30% of all those held in custody or refused bail were subsequently acquitted of all charges.

Young People and s 22A

[26] s 22A was implemented with the aim of preventing the manipulation of justice, detracting from the presumption of innocence.

  • Obstacles to a young person being granted bail include absence of a responsible adult/guardian, homelessness etc.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 166-7.
  2. Russell Hogg, ‘Policing and Penality’ (1991) in Textbook, pp. 167-9.
  3. Inquest into the death of Mulrunji, COR 2857/04(9), 27 September 2006; 14 May 2010 in Textbook, pp. 169-72
  4. Textbook, p. 172.
  5. Coroners Court Western Australia Record of Investigation into Death, Ref No. 9/09 in Textbook, pp. 172-7.
  6. Textbook, pp. 177-8.
  7. Textbook, p. 178.
  8. Textbook, pp. 179-80.
  9. Bail Act 1978 (NSW), s 8.
  10. Bail Act 1978 (NSW), s 8A.
  11. Bail Act 1978 (NSW), s 8B.
  12. Bail Act 1978 (NSW), s 8C.
  13. Bail Act 1978 (NSW), s 8D.
  14. Bail Act 1978 (NSW), s 8E.
  15. Bail Act 1978 (NSW), s 8F.
  16. Bail Act 1978 (NSW), s 9.
  17. Bail Act 1978 (NSW), s 9A.
  18. Bail Act 1978 (NSW), s9B.
  19. Textbook, pp. 180-1.
  20. Textbook, p. 181.
  21. Textbook, pp. 181-3.
  22. D Weatherburn, M Quinn and G Rich, "Drug Charges, Bail Decisions and Absconding" (1987) 20 ANZ J of Criminal at 103: "Persons charged with armed or violent robbery are not known to be more likely to abscond or commit further offences while on bail than persons charged with other offences".
  23. Textbook, pp. 183-4.
  24. Freiberg and Morgan, ‘Between bail and sentence: the conflation of dispositional options’ [2004], Current Issues in Criminal Justice 220 in Textbook, pp. 184-5.
  25. Textbook, p. 186.
  26. J Stubbs, 'Re-examining Bail and Remand for Young People in NSW', (2010) 43 ANZ J of Criminol 485 in Textbook, pp. 187-9.
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