Defendants charged with serious violent and sexual offences (including murder)

Bail Amendment Bill Q+A Defendants charged with serious violent and sexual offences (including murder) How is the Government changing bail rules for defendants charged murder? The Government thinks that a reverse burden of proof is appropriate for defendants charged with murder, as this is the most serious offence in New Zealand law. A reverse burden proof takes into account the very serious nature of a murder charge and the impact on the victims family and friends, while recognising that the court is best placed to appropriately weigh the important considerations of public safety and the defendant s criminal process rights. Defendants charged with murder will also be required to satisfy the court that they will not commit any offence involving violence while on bail. Public safety will be the court s paramount consideration in these cases. How is the Government changing bail rules for defendants charged with serious violent and sexual offences? Where a defendant charged with a serious violent or sexual offence has a previous history of serious violent or sexual offending, a reverse burden of proof will apply. The Government is extending the list of serious violent and sexual offences that qualify a defendant to be subject to a reverse burden of proof to include: sexual conduct with a child under 12 sexual conduct with a young person under 16 kidnapping (including abduction for the purposes of marriage or sexual connection) aggravated burglary, and assault with intent to rob. What is a reverse burden of proof? In most cases where bail is opposed, it is up to the prosecutor to prove to the court that the defendant should not be granted bail. However, in some situations where the defendant has a history of serious offending, especially a history of offending while on bail, the defendant must prove that he or she should be granted bail. This is called a reverse burden of proof. 1

Does a reverse burden of proof mean the defendant will not get bail? No. However a reverse burden of proof increases the likelihood that the defendant will be remanded in custody. This is because it is more difficult to prove why the defendant should be released on bail than to rebut the prosecution s arguments about why the defendant should not be released. A reverse burden of proof is unlikely to change the court s decision on bail for defendants who pose little risk of offending on bail, absconding or interfering with witnesses. Reverse burdens of proof generally only apply in situations where the defendant s offending history means they are high risk. Defendants charged with drug dealing offences What is the Government doing to address the high rate of offending on bail by defendants charged with serious class A drug offences? The Bail Amendment Bill will impose a reverse burden of proof in bail decisions for defendants charged with serious class A drug offences. The defendant will also be required to satisfy the court they will not commit any drug dealing offence while on bail. In October 2011, Cabinet approved an additional $10 million per year for alcohol and drug (AOD) assessments and interventions (including methamphetamine) treatment under the Drivers of Crime programme of work. Key initiatives include: additional low cost, high volume community-based treatment for offenders with AOD problems AOD treatment and support as part of a pilot AOD Court in Auckland, and additional funding for training and workforce development. The AOD Court is expected to operate from the second half of 2012 and will be available for participation by methamphetamine users. The $10 million investment package will be implemented over the 2012/13 year. What changes are there to how bail decisions are made for defendants charged with drug dealing offences? Currently, bail may only be granted to defendants charged with drug dealing offences by a District or High Court judge (as opposed to a Registrar, Justice of the Peace of Community Magistrate). However, if the defendant has a previous conviction for a drug dealing offence, bail may only be granted by a High Court judge. Further, if the defendant is arrested for 2

breaching bail conditions, bail must be reconsidered by the High Court, regardless of where the case is being tried and which Court made the initial bail decision. The Bail Amendment Bill removes the current limits on the District Court s jurisdiction to deal with bail matters of defendants charged with drug dealing offences as these limits are impractical and unnecessary. It is impractical to have all aspects of a case dealt with in a District Court, except bail matters, for which parties have to go to the High Court. Bail for young defendants under 20 years old What changes are there to how bail decisions are made for defendants aged 17-19 years? Currently, young defendants aged 17 to 19 years old are protected through a strong presumption in favour of bail. A court may only remand a defendant of this age if it is satisfied that no other course of action is acceptable in the circumstances, or if a reverse burden of proof applies. The Bail Amendment Bill removes the presumption in favour of bail for defendants aged 17 to 19 who have previously been imprisoned. These defendants will instead be subject to the standard adult test for bail (or a reverse burden of proof, if it applies). How does the Bail Amendment Bill improve the ability of Police and the Court to respond to young defendants who breach bail? At present, if a defendant under 17 years old breaches his or her bail conditions, Police may only arrest the defendant without a warrant if it is considered necessary to ensure that the defendant does not abscond, interfere with witnesses or evidence, or offend. The Bill gives Police new powers to deal with defendants who breach their bail conditions. Police will be able to uplift a young defendant found in breach of their bail curfew and return them home. Police will also have the ability to arrest a young defendant where it is believed on reasonable grounds that the defendant has significantly or repeatedly breached a condition of bail. The Youth Court s powers are extended to deal with defendants arrested under this new arrest power. If the Court is satisfied that the defendant has repeatedly or significantly breached their bail conditions, and is likely to continue to do so, it can order the defendant be detained (in appropriate youth facilities). 3

Electronically monitored bail What is electronically monitored bail (EM bail)? EM bail is a bail condition that requires a defendant to stay at a particular residence at all times unless absent for an approved purpose, such as to attend work. Compliance is monitored through an electronic bracelet attached to the defendant s ankle. EM bail is intended to be an alternative to remand in custody. To ensure that it is only used in cases where standard bail is not sufficient, only defendants who have already been remanded in custody can apply for EM bail. What do the EM bail provisions in the Bail Amendment Bill cover? Until now, EM bail has been imposed as a condition under the court s generic power to impose bail conditions. The Government has reviewed EM bail and has found it to be an effective and safe way of managing defendants in the community. However, the Government believes that it is important for legislation to cover EM bail to ensure the regime continues to be administered consistently and effectively. The Bill will ensure that: Courts have all relevant information about the suitability of the defendant for EM bail, as Police will be required to submit a report to the court before EM bail can be granted. EM bail is not granted inappropriately in situations where the defendant has a previous history of domestic violence against another person in the EM bail residence or any other relevant person. Time spent on EM bail is taken into account in a consistent way when a defendant is sentenced. Failure to answer bail What happens when someone fails to answer bail? A defendant fails to answer bail if he or she does not appear in court at the scheduled time. Failure to answer bail is a criminal offence. The maximum penalty for failure to answer court bail is a fine of up to $2000 or one year imprisonment. The Government considers that the current penalty for failure to answer Police bail (a maximum fine of $1000) is not a sufficient deterrent or sanction in the most serious cases. The Bail Amendment Bill increases the maximum penalty so that failure to answer Police bail is punishable by up to three months imprisonment as an alternative to the $1000 maximum fine. This will mean that the courts can also impose a communitybased sentence or home detention. 4

What are monetary bonds and sureties? A monetary bond is a guarantee from the defendant that he or she will attend court. The defendant usually deposits money with the court, but in some cases the defendant s bond is a promise to pay a certain amount if he or she does not attend court. A surety is a guarantee from someone other than the defendant such as a parent or friend that he or she will pay a specified amount if the defendant does not attend court. Why doesn t New Zealand use monetary bonds to ensure people turn up at court? In 1987 monetary bonds and sureties were abolished in the District Court and it became a criminal offence for a defendant to fail to answer bail. The Government considers that this is a better method of encouraging defendants to attend court and sanctioning non-compliance than monetary bonds and sureties. Monetary bonds and sureties are currently available for Police bail and bail granted by the High Court. Police advise that monetary bonds and sureties are seldom, if ever imposed for Police bail because they are difficult to enforce. The High Court occasionally imposes monetary bonds and sureties, but these are often for significant sums (usually at least $1000 and often $10,000 or more) and are usually part of a wider package of conditions. If the District Court declines bail in a case where a bond or surety may have tipped the decision in favour of bail, the defendant can appeal to the High Court to impose a bond or surety. The Bail Amendment Bill abolishes monetary bonds and sureties for Police bail. Why? From a constitutional perspective, it is inappropriate for Police to be able to require a monetary bond or surety in a situation where the District Court cannot. Police also advise that monetary bonds and sureties are seldom, if ever, imposed for Police bail because they are difficult to enforce. Will the High Court still be able to impose monetary bonds and sureties? Yes. The Government is not making any changes to the High Court s power to impose monetary bonds and sureties. Offending while on bail How many people offend on bail? Between 2004 and 2009, the number of defendants that offended on bail increased as the number of people that spent time on bail increased. However, the number of 5

defendants that offended on bail increased at a slightly faster rate than the number people that spent time on bail. The percentage of defendants that offended on bail increased from 15.7% in 2004 to 18.4% in 2009. Overall, an average of 17.4% of defendants charged with an offence between 2004 and 2009 that spent time on bail were convicted of committing an offence on bail (note that the defendant was not necessarily convicted of the original offence for which they were on bail). What sort of offences are committed on bail? The most common offences committed on bail are: Traffic and vehicle regulatory offences (19.8%). Offences against justice eg, failure to answer bail 15.5%). Theft and related offences (14.3%). Acts intended to cause injury (11.4%) and public order offences (9.9%). What happens when someone offends on bail? If a defendant who is on bail is charged with further offending, the court will reconsider whether they should remain in the community on bail or be remanded in custody. If a defendant is convicted of an offence committed while on bail, the fact that the defendant was on bail when he or she committed the offence is taken into account as an aggravating factor in sentencing. An aggravating factor is something that increases the seriousness of the offending or the blameworthiness of the offender, and generally results in an increase in the sentence imposed. Victims views How are victims rights on bail taken into account? In some cases, particularly those involving serious violence, the views of the victim (or the victim s parents or legal guardians) are given particular importance. The prosecution must make reasonable efforts to obtain and inform the court of the victim s views on bail if a defendant is charged with: Sexual violation or other serious assault. An offence that resulted in serious injury or death or the victim being incapable. An offence that has led to the victim reasonably having on-going fears for the safety or security of themselves or their immediate family. The court must take these views into account in making its decision. In some cases, the need to protect the victim of the alleged offence is given primary importance. If a 6

defendant is charged with breach of a protection order under the Domestic Violence Act 1995, the Bail Act states that the court's paramount consideration is the need to protect the victim of the alleged offence. In addition, where a reverse burden of proof applies, the Bail Act provides that the need to protect the safety of the public and the victim(s) of the alleged offence are primary considerations. What else is the Government doing to put victims at the heart of the Justice system? In March 2011, the Government announced a package of reforms to improve victims rights and increase the responsiveness and accountability of government agencies to victims. The Victims of Crime Reform Bill is currently before the Justice and Electoral Committee for consideration. The reforms include amendments to the Victims Rights Act 2002 so that: Victims will be better informed of their right to be given notice of specified events such as the outcome of bail hearings Eligibility for victims to be notified of specified events, such as bail, will be widened to explicitly include all victims of sexual offences Victims of serious offences who have had their views on bail submitted will be notified of the outcome of the bail hearing, including any conditions relating to the victim or their immediate family. Responsibility for notifying victims will be split between Police for high-risk cases requiring urgent notification and the Ministry of Justice for the remaining cases Police will notify victims when Bail is opposed and the Ministry of Justice will notify in all other cases All victims of serious offences who are registered on the Victim Notification System will be notified of all outcomes of bail hearings by Police, regardless of whether they have submitted their views on bail or not Prosecutors will be required to make reasonable efforts to ascertain a victim s views on the custody of a child or young person awaiting trial, where that victim is a victim of a serious offence. The outcome of the court s decision must be notified to victims. A Victims Code will be developed by the newly established Victims Centre in the Ministry of Justice, in consultation with other government agencies and NGOs. The Code will outline victims rights and the services they are entitled to, including their input into bail and receiving notice of bail outcomes and conditions. The aims of the Code are to increase the transparency of justice processes for victims and to improve the accountability of agencies that have legislative obligations, or deliver services, to victims. 7