Tougher bail for our worst criminals

By Derek Cheng

Justice Minister Simon Power has proposed changes that will make bail harder to get. Photo / Herald on Sunday
Justice Minister Simon Power has proposed changes that will make bail harder to get. Photo / Herald on Sunday

Bail will be tougher to get for those accused of the worst crimes under proposed changes announced by Justice Minister Simon Power today.

A bill to be introduced to parliament next year would reverse the burden of proof for bail to be granted. Currently the prosecution has to prove that an accused is a risk to public safety to have bail denied, but under the new law, the defence team would have to prove the accused is not a risk to public safety or interfering with witnesses or evidence that would affect their trial.

The reversal would apply to those accused of murder or a serious class A drug offence.

It would also apply to number of violent and sexual offences, including the charges of sexual conduct with a young person under 16, kidnapping, aggravated burglary, and assault with intent to rob.

This focuses on defendants with the highest risk of committing serious offences while on bail, rather than those with the highest rates of offending on bail, which may include non-serious or trivial offences.

The changes were canvassed in a public consultation document released on March 15 this year which provided a series of preliminary proposals for the public to make submissions on. The public had two months to submit on the document and 49 submissions were received.

"These changes are designed to achieve the right balance between public safety and a defendant's right to be considered innocent until proven guilty, and to not be arbitrarily detained," Mr Power said.

Other proposals include:

* To confirm current practice, making it clear in legislation that bail will not be granted in return for information. Public safety and a fair trial must be the primary concern when deciding whether to grant bail. Bail should not be used as a bargaining chip in return for information from the criminal underworld.

* Increasing the penalty for failure to answer Police bail so that the offence is punishable by up to three months' imprisonment, in addition to the existing penalty of a fine of up to $1000.

* Reducing the number of situations where a defendant is "bailable as of right" because some of these offences can cause serious harm to others (e.g. abandoning children, injury by an unlawful act, and failing to provide the necessaries of life).

* Putting the electronically monitored bail regime into legislation to ensure it is administered consistently and effectively.

Strengthening bail for young defendants:

* Making defendants aged 17 to 19 years old who have previously served a prison sentence subject to the standard (adult) tests for bail, rather than the strong presumption in favour of bail that currently applies (a court may remand a defendant of this age in custody only if it is satisfied there is no other course of action acceptable in the circumstances, or if the reverse burden of proof applies). Between 2004/09 more than half of young defendants in this category offended while on bail.

* Enabling the court to detain defendants under 17 years of age who significantly or repetitively breach bail conditions. Currently, unless it is a particularly serious breach of bail conditions there is little police can do to immediately act on a breach.

* Enabling police to uplift young defendants found in breach of court-imposed curfews, and return them home or to a place where they will comply with the curfew.

"New Zealanders have a right to feel safe in their homes and their communities and these changes reinforce that," Mr Power said.
He said the changes will result in some increase in fiscal costs for the justice sector, such as additional costs for legal aid, and costs resulting from more defendants spending time in prison pending trial. It is estimated the extra cost could be up to $4.5 million per year with the funding coming from existing baselines.

- NZ Herald

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