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"Innocent Until proven Guilty” A new myth?

From tomorrow the most controversial overhaul of bail laws in NSW history will take effect – and if you believed Barry O’Farrell before his own sentence to political oblivion – this legislation would be a “cure all.”

Well I am not so sure.

In all its dubious wisdom the O’Farrell government ignored the Law Reform Commission’s advice to introduce a universal presumption in favour of bail, and additional applications for bail for adults.

Perhaps O’Farrell had been giving the Grange a nudge when he stood alongside sacked Police Minister Mike Gallacher and ditched Attorney General Greg Smith to claim the government was introducing a "simpler" Bail Act.

They said the community had been “confounded by complexities such as the presumptions scheme.

"We have all been left scratching our heads from time to time about the inconsistency in which the current bail law is applied," Mr O'Farrell said.

In law you learn to respect the strict letter of it and avoid reckless generalisations. What exactly did O’Farrell mean by “WE have all been left scratching our heads.”? We? Who’s “we”? The answer lies with knee-jerking politicians more likely to be guided by the rants of shock jocks than the time-tested rules of law – including the bedrock belief that an accused is always innocent until proven guilty.

In this era of ubiquitous, instant media via the likes of Twitter and live blogs on newspaper and television websites I would suggest it’s never been more challenging to protect clients from perceptions and presumptions of guilt - long before a case gets to hearing.

Populist politicians are not exactly countering the inherent bias of breathless reportage. The very language of political “leaders” is loaded, if not sensationalist, in referencing the new bail act. Don’t look any further than O’Farrell's commentary.

"Accused criminals who pose a serious risk to community safety or are likely to commit further crimes will not get bail under this model."

It’s bad enough in the written form – but in television and radio grabs when he stresses the words “criminals” and “risk” and “likely to commit further crimes” the fog of guilt starts to swirl.

And on it goes.

"Our reforms will ensure the risk to the community is the first thing taken into account," he said.

If someone’s innocent until guilt is proven what does the Premier exactly mean by “risk?”

Granted – magistrates have a right to measure the strength of a prosecution’s allegations in the initial stages – but when the cops are asking for a two month adjournment to prepare a brief one would think they still have their work cut out for them. So is it fair that a person who is accused – long before trial (IF it even gets that far)– should have to wait in custody until the prosecution gets its act together?

Greg Smith said the former Bail Act was left “inconsistent and overly complex” by 85 amendments in 34 years.

But one could argue – more convincingly I think – that these changes reflected the respective eras and changing community sensibilities and, heaven forbid – improved justice!

It came as no surprise to see the new act welcomed by Police Commissioner Andrew Scipione. A whole range of inefficiencies and outright deficiencies in the preparation of what should be strong briefs can now be excused as an accused is forced to wait for justice behind the bars of our overcrowded remand centres.

Although many practitioners and magistrates believe bail will be a lot easier to get from tomorrow I am yet to be convinced.

I can see how bail will be easier in the cases where there was previously a presumption against bail for charges such as serious drug offences and the courts must still take into account community ties, protection of the community and a raft of other strict conditions.

The Bureau of Crime Statistics and Research will monitor these changes over three years. Only time will tell if BOCSAR’s Dr Don Weatherburn will vindicate my misgivings.

Australian Criminal Law Specialists

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"He's got a very good tactical mind and is good with strategy ... great advocacy and comes to grips with the evidence."

The Sunday Telegraph, 2013

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