Locked up without a trial

Only sexual offences involving minors are on the current list but the default position is already refusal of bail for most sexual assault offences. Now the push is now on for all sexual assault offences to be included in the "show cause" list, including allegations involving lack of consent. Can you imagine the consequences if all young men being accused of such crimes were immediately locked up without a trial?

When it comes to domestic violence, the reality is that in the current culture most magistrates will err on the side of caution - "in case something happens". They will rarely give bail if they perceive that there is any risk of violence. Even with less serious offences involving domestic violence breaches, risk-averse magistrates are (understandably) readily convinced to take the easy way out.

The consequence of these changes to bail laws is that the rate of bail refusals has increased by 47.3% over last 9 years according to BOCSAR. This means more and more remand prisoners even though crime rates have been on a dramatic decline.

NSW Greens MLC David Shoebridge commented that this change "undermines the presumption of innocence for every citizen in NSW, and is an attack on this fundamental principle in our criminal justice system."

In 2019 an ACT man, Atem Deng had a family violence order placed on him for damaging some property. On 30 August 2019, Deng was convicted, fined and "all related charges were finalised".

Nevertheless, in October he was arrested for being at the home he and his partner had shared, despite the fact he had not had contact with his ex. Bail was refused and he was held on remand for 58 days. The experience was horrendous, including a full-body cavity search, and having his life threatened by a cell-mate.

The ACT Supreme Court found that there was no basis for the charge against him because there was no order preventing him from being there. Yet when Deng sought damages for false imprisonment, the Court of Appeal dismissed the claim, saying that locking up people who were not guilty was "not uncommon."

The absolutely gobsmacking conclusion from the three court of Appeal judges was that locking up this innocent guy was "the system working, not failing."

The writing is on the wall, and it is very, very scary.