Bail Amendment Bill 2012 4 May 2012 Attorney-General Bail Amendment Bill 2012 PCO15616 (v6.2) Our Ref: ATT395/171 1. I have reviewed this Bill for consistency with the New Zealand Bill of Rights Act 1990. While aspects of the Bill give rise to questions under sections 21 and 24(b) of the Bill of Rights Act, I conclude that the Bill appears to be consistent with that Act. 2. The Bill amends the Bail Act 2000. For the purpose of considering consistency with the Bill of Rights Act, the significant amendments are those that will broaden the range of situations where there is a presumption that bail should not be granted and those that specifically legislate the electronically monitored (EM) bail regime that currently operates under the general power for Judges to impose conditions on bail. Reverse onus provisions 3. Section 24(b) of the Bill of Rights Act guarantees that every person charged with an offence shall be released on reasonable terms and conditions unless there is just cause for continued detention. 4. The presumption of innocence is an overarching principle of fundamental criminal justice but it does not directly apply to the consideration of bail prior to trial, which is concerned with anticipated behaviour rather than punishment for past conduct.[1] The procedural content of the right is supplied by the requirement that pre-trial detention occur only where there is just cause. 5. There will be just cause for detention if during the remand time there is a significant risk that the person charged will abscond, or that they will interfere with witnesses or evidence, or commit further offences while on bail.[2] The notion of just cause is confined to the protection of these public safety values, which are fundamental to the integrity of the bail system. 6. After the amendments proposed by this Bill, s 8 of the Bail Act 2000 will continue to set just cause for continued detention as the fundamental touchstone for the granting of bail under the Act, and prescribe the mandatory and permissible considerations in a way that ensures consistency with s 24(b) of the Bill of Rights Act.
7. The normal rule is that there is a presumption in favour of granting bail, unless the prosecution can satisfy the Judge that there is just cause for continued detention. The question raised by this Bill is whether reversing that presumption in the three circumstances contemplated by the Bill would make the enactment inconsistent with s 24(b). 8. An enactment that puts the onus on the defendant to satisfy the Court that bail should be granted will be inconsistent with s 24(b) if it could lead to a person being denied bail without just cause. 9. The Bail Act 2000 already provides for a reverse onus for specified offences where the defendant has a prior conviction for another specified offence. That section has been frequently applied but has escaped any close analysis in our Courts. 10. The Supreme Court of Canada has considered the consistency of a reverse onus bail provision with s 11 of the Canadian Charter of Rights and Freedoms.[3] Section 11 of the Charter also employs the just cause standard as the qualifier on the right to obtain bail on reasonable terms. 11. In R v Pearson Lamer CJ, giving the judgment of the majority, found that the imposition of a reverse onus of proof could lead, in some circumstances, to a denial of bail,[4] but there would be just cause in doing so, if the imposition of the reverse onus served the purpose of ensuring the proper functioning of the bail system where the normal bail process (the onus resting on the prosecution) is incapable of doing so. Having found that trafficking in narcotics was an offense commonly associated with the commission of further offending on bail, and an increased flight risk, the imposition of a reverse onus was a proportionate response and would not involve denial of bail without just cause. 12. The case is an appropriate guide to how the New Zealand courts are likely to apply s 24(b) of the Bill of Rights Act. If the normal disposition of the onus of satisfying the Judge does not ensure the proper functioning of the bail system in relation to any particular class of defendant, then reversing that onus will not lead to a denial of bail without just cause, provided the burden placed on the defendant is not disproportionate. 13. The Ministry of Justice undertook a statistical analysis of the way the bail system was working under the existing legislation, with particular regard to the extent and nature of further offending by defendants granted bail, and summarised the results of that analysis in a public discussion document released in March 2011.[5] This provides the most useful guidance as to the grounds for the proposed changes to the onus of proof. The specified offences 14. The imposition of a reverse onus for the additional six specified offences responds to an increased risk of offending while on bail by persons who are charged with such offences. As the Ministry reported in Bail in New Zealand there were six serious offences, not currently in the category of specified offences, where the rate of offending while on bail was significantly above the average.[6] This occurred over a period where the rate of offending on bail for all offences was itself increasing.[7] This evidence amply justifies the conclusion
that the existing disposition of the onus was not ensuring the proper functioning of the bail system in relation to those six offences. Serious drug offending 15. The Ministry of Justice study showed that further offending by persons charged with serious class A drug offences during 2004-2008 was particularly high (34%) and a high proportion of that further offending was drug-related.[8] For the same reasons applied to the specified offences, this justifies the conclusion that the integrity of the existing bail system was being undermined. Murder 16. As the Ministry of Justice study notes, a high proportion of persons charged with murder are already remanded in custody awaiting trial. As such, the sample size for those on bail is small. The proportion of those persons charged with murder offending while on bail from 2004-2008 was below the average, but the statistics show that of the 14 defendants out of 123 who offended while on bail awaiting trial for murder, 7 were subsequently sentenced to imprisonment for that offending.[9] While the rate of further offending falls short of the average, the relative seriousness of the offending by persons charged with murder during the remand period supports an argument that the bail system was not operating effectively. Shifting the onus of proof to the defendant charged with murder is a proportionate solution. Summary on reverse onus provisions 17. Where the onus will shift to the defendant charged with murder or a second specified offence, the Bill prescribes a primary consideration for the Court, namely the need to protect the safety of the public and any particular persons including victims where appropriate. This is currently provided for in s 10(6) of the Bail Act 2000. If public safety were given a wider interpretation than being kept safe from further offending or attempts to interfere with witnesses or evidence, it could be said to introduce a consideration that was extraneous to the just cause standard. The interpretation of those provisions in accordance with s 6 of the Bill of Rights Act would preclude that. 18. Shifting the onus to the defendant in each of the three situations contemplated by the Bill will not impose any disproportionate obligation on the defendant. The relevant criteria are either matters for qualitative assessment by the Court (for example the strength of the evidence, and the likelihood of imprisonment upon conviction) where the question of who bears the onus will be less important, or they are matters upon which the defendant is well placed to inform the Court, such as the likelihood of further offending and the sort of restrictive bail conditions that might sufficiently reduce the risk of that offending. 19. In my opinion each of the proposed reverse onus provisions is consistent with s 24(b) of the Bill of Rights Act.
Electronic monitoring 20. The legislation of the EM bail regime raises a potential inconsistency with s 21 of the Bill of Rights Act because there is growing support for the notion that any form of electronic monitoring of a person s movements constitutes a search. 21. Without settling the point, even if it were a search it is plainly not an unreasonable one. Any person who is subject to EM Bail conditions would otherwise be remanded in custody, and EM bail conditions are not to be imposed if any lesser conditions or combination of conditions would ensure that the defendant does not abscond, commit offences or interfere with witnesses or evidence.[10] 22. The Bill also proposes that it is an offence to refuse or fail, without reasonable excuse, to allow an authorised person to enter an EM address for the purpose of servicing or inspecting any electronic monitoring equipment at the address. The execution of such a power of entry would constitute a search and would have to be exercised in a reasonable manner. For instance it would be necessary to take into account whether the electronic monitoring equipment could be serviced or inspected without entry into the address. 23. In my opinion the EM bail provisions of the Bill are consistent with the Bill of Rights Act. 24. In accordance with Crown Law policy this advice has been peer reviewed by Lisa Fong, Crown Counsel. Austin Powell Crown Counsel Team Leader (Human Rights) DDI: 494 5618 Email: austin.powell@crownlaw.govt.nz [1] R v Morales [1992] 3 SCR 711, Lamer CJ at 714 [2] B v Police (No 2) [2000] 1 NZLR 31 (CA) at para [10] [3] R v Pearson [1992] 3 SCR 665 and R v Morales [1992] 3 SCR 711
[4] R v Pearson at 692 [5] Bail in New Zealand Reviewing aspects of the bail system, Ministry of Justice, March 2011 [6] Bail in New Zealand page 38 Table 3 [7] Bail in New Zealand page 21 Table 1 [8] Bail in New Zealand page 27 Figure 11 [9] Bail in New Zealand page 34 Table 2 [10] Bail Amendment Bill clause 17 (proposing new s 30C) In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Bail Amendment Bill 2012. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.