Goff Phil: Bail Amendment Bill — Third ReadingText is incorporated into the Bound VolumeGoff Phil: Bail Amendment Bill — Third Reading[Sitting date: 27 August 2013. Volume:693;Page:12882. Text is incorporated into the Bound Volume.]Hon PHIL GOFF (Labour—Mt Roskill): Labour is supporting the Bail Amendment Bill as a relatively modest but nevertheless constructive way of dealing with the problem of offending while on bail. I say “relatively modest” because the measures in this bill will tackle the problem around the edges but will not tackle the fundamental problem of why the level of offending on bail is so high. I want to come to that in due course.There is naturally in this country a presumption of innocence until proven guilty and I do not think any member of the House would seriously want to challenge that presumption. It is embedded in our system of justice. If we have a presumption of innocence then we have a presumption that people will be granted bail. That presumption cannot be absolute. It would be crazy for it to be absolute because you also have to take into account public safety when you are dealing with defendants who are charged with committing in some cases very serious offences.Right now the judge has the presumption and then takes into account firstly whether the defendant is likely to continue offending. If that is the case then the person needs to be locked up. The second thing is whether the person is likely to abscond. Again if there is evidence that that is likely then remand in custody is appropriate. And third the judge takes into account whether the defendant is likely to do anything that might pervert the course of justice such as interfering with witnesses while on bail. This bill does not fundamentally change the discretion of the judge or the decision that the judge makes—presuming innocence but weighing it up against public safety factors.The reason why change is needed I think has become very obvious in recent years. In the course of the Law and Order Committee hearing we heard from traumatised people who had lost family members—murdered by defendants who were at that point on bail having faced other charges on sometimes quite serious offences.The particular case that achieved a lot of publicity was the case of ChristieMarceau. It was a tragic case of a young woman murdered by a man who had previously kidnapped her abused her and then was given bail to live in close vicinity to theMarceau household. That family understandably wanted to know why. Why was bail given when the police had come out against the giving of bail? We heard from other families who had suffered similar losses.Those individual cases are backed up by statistics. Seventeen percent of those who are on bail go on to reoffend while they are on bail. Often it is for relatively small offences—relatively minor ones—but not in every case. In the 5-year period from 2006 to 2010 23 people on bail went on to commit murder; 21 went on to commit homicide; about 763 went on to commit acts of a sexual nature including serious sexual offending; and a whopping 7146 went on while they were on bail to commit acts with the intent of injuring other people.Those statistics look huge. I guess you have to see that fairly in context. Those statistics represent a relatively small percentage of the 450000 people who were bailed over that period. But it is not small if a member of your family is the victim of a crime committed by somebody on bail. Therefore we needed to look at that and we needed to do something to try to ensure that greater scrutiny is applied by judges in respect of people with a high likelihood of offending.That is what this bill basically does. This bill focuses on a reverse burden of proof. At the moment the norm is that if you do not want somebody to get bail the police have to prove to the court that that person is not safe to bail. The reverse burden of proofturns it on its head and says that the defendant needs to demonstrate to the court that they are safe to release. The net impact of that as we discovered in questioning people before the select committee is that basically the judges will look more carefully at cases on the margin.I do not want to exaggerate the impact this bill will have. That would be unfair to the people who made submissions to it. We learnt that it will probably mean an increase of 50 prison beds. We are talking about more than 90000 people being bailed each year. It will affect about 350 people because of the flow-through effect and that has an impact. It is much more significant than Simon Power’s ludicrous piece of legislation which this Government put through before the last election that had an effect on 10 people—10 people. That was as an eminent professor of law said simply window dressing.It will not have the same impact as the fundamental law that it is amending the Bail Act which I put through in 2000. That Act lifted by 200 percent—210 percent actually—the number of people remanded in custody. That had a fundamental effect. I believe that it was necessary at the time but again I do not want to create the impression that the answer to offending on bail is simply locking up more and more people. Every year we remand 43 people per 100000 in custody while their trials are awaited. That compares with Australia where the number is 30—our 43 against 30—with the UK where it is 25 and Finland where it is 10. So we are locking up a relatively high proportion of people on bail and that is why I say that this bill just deals with things around the margins.What we have got to do is make some fundamental changes to the way in which bail works. These are the sorts of things that the Labour Party is considering. I am pleased that the Minister picked up the fact that if you have got somebody waiting 18 months before their case is heard then of course there is going to be an increase in the likelihood of that person offending while on bail. Justice delayed is justice denied and the increasing length of time before cases can be heard in court particularly before the District Court in Manukau and Auckland is where you have got to tackle this problem at its fundamentals. Let us look at making justice swifter so that the cases are not waiting month after month after month when the person who is bailed and more likely to be bailed because of the length of time they are waiting is likely to reoffend.The second thing that we looked at was the ability of the police in practice to appeal a case where they applied for bail to be withheld so that the person would be remanded in custody and the judge came to a different decision. I am not saying that the judge was right or wrong but if the police really believed that the person should be remanded in custody they needed to have a way to appeal that decision swiftly. Otherwise it is theoretical. The person is let out and the police say: “Well the person is out now. We won’t bother.” The sense that we got at the committee was that police were not actually appealing cases even when they thought the judge had basically got it wrong.The third thing we need to do is give the judge better risk assessment tools. You have got to say that when you sit in the court and you watch the judge making decision after decision those decisions are made in minutes. They are not decisions that are made after great contemplation. They cannot be if you have got 91000 bail cases a year so you have got to do more to assist judges in terms of risk assessment. We need to look at that. Fourthly and I think quite important is that we need a better review process of where the bail decision in hindsight was wrong.I want to make something very very clear. That is not about interfering with the judicial process. The review process needs to occur within the judicial system maintaining judicial integrity and judicial independence. But the head of bench perhaps with the task of looking at cases like theMarceau case could say: “We got it wrong in hindsight. It had tragic consequences. How did we get it wrong? What can wedo about it?”. I think that that review system could be considerably strengthened and made more transparent.So what I am saying is that this bill does things on the margin. I am comfortable about extending the reverse burden of proof in murder cases and cases of serious violent and sexual offending. We had that in the original Act. Expand it by all means. I think that it makes sense where you have got serious class A drug charges. We know that more than a third of the people bailed on serious class A drug charges are out dealing again while they are on bail. Yes of course a reverse burden of proof should be there with the alleged offender having to prove to the court that it is safe to put them out.I want to touch on young defendants briefly. Look if you are 18 or 19 you are an adult in every aspect of the law and therefore a special presumption—Mr DEPUTY SPEAKER: Order!Hon PHIL GOFF: —of bail is not warranted in that case. If you are 17 and I will finish on this point—Mr DEPUTY SPEAKER: No you will finish now. [Interruption] Order! The member’s time has expired.