Goff Phil: Bail Amendment Bill — In Committee Third ReadingText is incorporated into the Bound VolumeGoff Phil: Bail Amendment Bill — In Committee Third Reading[Sitting date: 27 August 2013. Volume:693;Page:12873. Text is incorporated into the Bound Volume.]Hon PHIL GOFF (Labour—Mt Roskill): The Labour Party supports the Bail Amendment Bill. It supports it because the net effect of the bill is really to toughen the provisions for giving bail on the margins where people have the greatest likelihood of reoffending while on bail. This bill does not make a huge difference to be absolutely frank about it. What we found in the Law and Order Committee particularly with the reverse burden of proof being placed on the defendant was that this bill might result in another 50 prison beds being required. Something like 350 people a year I think might be affected by this. If you take that 350 people in the context of how many people are granted bail it is in excess of 91000 people getting bail a year based on the 2009 figures.So we have a bill here that will make it more likely for a relatively small number of people not to be granted bail when they are accused of a serious offence. I guess we should acknowledge that the Minister of Justice’s bill makes some difference as against that of her predecessor Simon Power who in the last Parliament brought in a bill that had the net effect of influencing the imprisonment of 10 people a year. That bill was as a well-known professor of criminal law said simply window dressing.But I want to say to the Minister that it is a fairly soft measure. If you compare this with the legislation that came inin 2000 which I as the then Minister of Justice was responsible for you will see that that saw a 200 percent increase in the number of people who were remanded in custody rather than being granted bail. So that Bail Act 2000 made a huge difference. Before that the level of offending on bail was pretty rampant. There needed to be a toughening-up and that toughening-up occurred.But I want to say I am not being particularly critical of the Minister because if you look at the figures for the number of people who have been charged with an offence whom we remand in custody you will see that in New Zealand it is 43 per 100000. That compares with Australia where it is only 30 per 100000 the United Kingdom where it is 25 and Finland where it is 10. So in relative terms our bail laws are reasonably tough.Having said that why would Parliament want to support a further toughening at the margins? Well the reason why we support a toughening at the margins is that there is still too much offending by people who are out on bail. Judged over the period of time from 2006 to 2010 the number of those who offended again while on bail added up to about 17 percent. That is nearly one in five. A lot of those offences were relatively minor offences but some were not. For example if I look at the figures during that 5-year period I see that 23 people committed murder while they were on bail and were subsequently convicted of murder 21 committed homicide 763 were found guilty of sexual offending at the time they were on bail and quite a large number 7140 were convicted of acts that were intended to cause injury. If you take those figures as a proportion of the 450000 people who were bailed over that 5-year period they do not seem to be a lot. But if you are the victim of that offending or a member of the family of the victim then that is very serious.We heard cases before the select committee where families came along to the committee absolutely aggrieved and understandably so that somebody who was out on bail for allegedly committing a relatively serious crime again offended in a serious way while they were out on bail. When you look at those figures you see that New Zealand still has to do better. Seventeen percent of those who are out on bail still committing offences is a figure that is too high.So this bill works on a number of different areas. The first point that I want to make is an important point and that is that there is nothing in this bill at all that removes the discretion of a judge to grant bail. That is important because every case is different and there has to be flexibility for the judge to look at all aspects of the case to make a decision rather than the law being too prescriptive. So there is nothing in this bill that takes away the discretion of the judge.But what the bill does do is reverse the onus of proof. Normally there is a presumption of bail and that is important. For centuries our British system of justice has said you are innocent until proven guilty and if you are innocent until proven guilty then there has to be a presumption of bail. But of course nobody in this House and certainly nobody on the bench is naive about that. If a person has allegedly committed an offence and one they might present a serious risk of reoffending or two there is a serious risk that they may abscond or three there is a serious risk they might interfere with witnesses then judges use their discretion to say that that person will be remanded in custody and they will not be released on bail. So that does not change. That is the main reason why judges under the existing law and under the future law will make a decision either to grant bail or to remand in custody or rule that the defendant spend some time on bail and maybe some time in custody.But there are six areas where changes are made. Firstly if you are alleged to have committed murder the most serious offence you can commit there will be a reversal of the burden of proof. That will not actually change things a lot on the ground. If you look at the statistics for those who are alleged to have committed murder two-thirds of them are remanded in custody anyway. But what this bill requires is that the judges look a little bit more carefully at those who they might release on bail albeit charged with the serious offence of murder.The second thing the bill does is build on the list of repeat violent and sexual offences that I put in the legislation in 2000 where there will be a reverse burden of proof—a burden on the defendant to prove that he or she is not likely to offend rather than the burden being on the police to persuade the court that he or she is likely to offend. Previously for murder attempted murder manslaughter sexual violation wounding with intent aggravated wounding or use of a firearm in a crime then you had the reverse burden of proof. This list is added to by including other serious offences: sexual conduct with a child kidnapping or abduction aggravated burglary and assault with the intent to rob. If you have been previously convicted of those offences and you are charged again with a similar serious offence the reverse burden of proof makes sense. I have no objection to that at all.The second key area that it changes is in regard to serious drug charges. We are talking here about class A drugs. The alarming thing about the statistics here is that of those charged with committing a class A drug offence 34 percent of them are subsequently convicted of another serious drug offence while on bail and that is simply too high. More than one-third are convicted of a further drug offence and that is another reason why in this area the reverse burden of proof can be justified.The third area relates to young defendants. There has been a strong presumption in the past of bail for those who are 17 18 and 19. When we considered the 18 and 19-year-olds we considered that since they were adults in every other facet of the law there was not a strong case for treating 18 and 19-year-olds differently from any other age group. In fact the offending by 18 and 19-year-olds tended to be higher than in other age categories. So that strong presumption in favour of bail is removed in that area and likewise for 17-year-olds who have been previously imprisoned. Just to finish off I say that I would not want to see 17-year-olds normally placed in jail if there is any alternative because they are young and impressionable. But the statistics also say that ifthey are 17 and they have previously been imprisoned then there is a very very high chance that they will reoffend and therefore that presumption of automatic granting of bail should be removed.The other things are relatively minor. There are changes in terms of police bail to bring it in line with court bail. That is supported by us. The bill gives a statutory basis to electronically monitored bail. Electronic monitoring has proven very effective in reducing offending by people while on bail. This gives a statutory basis to it. There is no problem with that. And there are some relatively small amendments made in relation to bailable offences that are bailable as of right removing from that category offences for a false declaration and providing the necessaries of life.The thing I want to finish on is to say that this is a piece of legislation that is not radical. It has a relatively minor effect. I think it will be helpful. But if we really want to deal with the much wider problem of offending on bail then we need to look at the delay in people actually having their cases heard in court because if you are on bail for a longer period of time obviously the offending on bail will go up. That absolutely has to be looked at. I think you Mr Chair and I both sat in at the District Court in Auckland and watched the production-line nature of bail applications being heard. Any assistance we can give to judges in terms of risk assessment tools will be important.The other thing that I think is particularly important is that where decisions to grant bail are in hindsight wrongly made we need to have a better system of reviewing those decisions that the judges have got wrong. I am not proposing here an interference in judicial independence. I am saying that the head of bench should probably have a better way of reviewing cases where wrongful decisions are made to see what we can learn from those decisions to stop mistakes happening again. With those comments I say that we support this bill.