Recent changes to bail laws for domestic violence offences

Monday, December 11, 2017

It’s no secret that domestic violence has been a prominent topic in recent years.  Likewise, grants of bail for alleged perpetrators are often controversial matters subject to scrutiny by the media.

In February this year, it was reported that a man in Pimpama who committed suicide after killing his wife was on bail for an earlier violent attack on his wife.  Similar tragedies in recent times have resulted in calls for tighter bail laws.

On 30 March 2017, the Bail (Domestic Violence) and Another Act Amendment Act 2017 (Qld) (‘the Amendment Act’) came into force.  This article will address how the amendments affect applications for bail in domestic violence matters.

Changes to ‘show cause’ status

Section 16 of the Bail Act 1980 outlines the factors that must be considered in an application for bail.  Ordinarily, a person charged with an offence is entitled to bail unless the court is satisfied the person is an unacceptable risk of either, in summary:

  • failing to appear in court,
  • committing further offences, and
  • endangering their own or someone else’s welfare or safety.

However, in certain situations, the presumption of bail is essentially reversed, requiring the defendant to show cause that their detention in custody is not justified.  Perhaps the most notable of those situations is the alleged use or threatened use of a weapon in the course of an indictable offence and being charged with an indictable offence that occurred while on bail for another indictable offence.

Arguably, the most significant effect of the Amendment Act is to extend the ‘show cause’ position to any defendant charged with a relevant offence.

Relevant offence is defined under section 16(7) as:

  • an offence of choking under section 315A of the Criminal Code 1899,
  • any offence punishable by a maximum penalty of at least seven years imprisonment when also charged as a domestic violence offence,
  • offences under the Criminal Code 1899 of threatening violence, dangerous operation of a motor vehicle, deprivation of liberty and unlawful stalking when also charged as a domestic violence offence, and
  • offences of contravening a domestic violence order where:
    1. the offence involves the use, threatened use or attempted use of violence towards a person or property,
    2. the defendant has been convicted, within the previous five years, of contravening a domestic violence order in the circumstances of (i), above,
    3. the defendant has been convicted, within the previous two years, of any offence of contravening a domestic violence order.

Clearly, the scope of ‘relevant offence’ is very broad and would undoubtedly capture the majority of contravening domestic violence order charges that come before the courts.

The impact of the amendments is that a greater percentage of people charged with domestic violence related offences will fall into a ‘show cause’ category.  This will inevitably result in more defendants being denied bail by police and having to make a ‘show cause’ bail application before a court.

Power for Prosecution to seek review of bail decision

Introduced in the Amendment Act, section 19CA of the Bail Act 1980 empowers the prosecution to seek a review of a grant of bail regarding a domestic violence offence.  Ordinarily, such a review would be heard by the Supreme Court.

When an application for review is made, the defendant is not entitled to be at liberty, and will remain so for three business days unless the application for review is heard or dismissed before then.

No doubt, the intention of this unusual and powerful provision is to ensure the protection of victims of domestic violence.  However, it clearly also carries the potential for defendants to be unjustly detained as there are no apparent restrictions in prosecution making an application for review.

It should be noted that the amendments to bail laws addressed in this article are relatively new, with courts and both sides of the bar table still adjusting to their implantation.  What is clear is that the potential consequences for being charged with domestic violence offences or having a domestic violence order made against a person are very serious and far reaching. It is a rapidly evolving area of law.

We would encourage any person facing domestic violence charges or applications for domestic violence orders to seek advice from a criminal lawyer about the potential ramifications.

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