Chapter 10 deals with ‘Bail and Family violence’. The interaction between bail conditions and protection order conditions is considered from p 420. The Commissions note that bail conditions can be imposed in parallel to protection order conditions. Bail conditions and protection order conditions should be consistent because inconsistency increases confusion which increases the likelihood of breach. This compromises victim safety and could also have serious consequences for accused persons.
The report notes that while bail conditions simply requiring an accused to abide by existing protection order conditions avoids inconsistencies, this formula should not be used at the expense of victim safety (p 422).
The Commissions commented that upon granting bail, judicial officers should consider whether to also grant a protection order because bail conditions do not serve the same purpose as protection order conditions and may not be able to adequately protect the victim (p 422 & 424-425).
The issue of informing victims about bail decisions is considered from p 425.
This report evaluated the approach to bail in the context of domestic and family violence in the Australian Capital Territory. This approach (under the Family Violence Intervention Program) imposes presumptions against bail for domestic violence offences. The threshold for police bail is extremely high, with a police officer unable to grant bail unless satisfied that the accused person would pose no danger to the victim while released on bail. It was found that this approach increased victim safety (see at p 109).
Chapter 4 discusses bail from p 134. In family violence matters, the court will often impose ‘protective bail conditions’. The report notes that an accused may be subject to protective bail conditions and a protection order concurrently. The Commission’s view was that protection order conditions should be considered in addition to protective bail conditions and pointed out that once a charge is dismissed or otherwise dealt with, bail conditions will lapse. This leaves no ongoing legal protection for the victim (p 134). The Commission emphasised the importance of thorough risk assessment when determining bail in the domestic and family violence context, noting ‘In cases where an accused seeks a relaxation of protective bail conditions in order to enable contact to occur between the accused and the victim, it is necessary for the court to properly assess the risk to the safety of the victim before making a decision’. This may involve attaining a bail risk assessment report (p 137). Therefore, it is clear that the imposition of appropriate bail conditions can reduce the risk of harm to victims. The Commission also noted that it is important that protective bail conditions and protection order conditions are consistent so as to avoid confusion and unintended breaches (p 135).
This article examines the different approaches taken to bail in domestic violence legislation and cases across Australia.
The authors note there is a ‘patchwork’ approach to bail and family violence between jurisdictions. Some jurisdictions specifically define domestic violence offences for the purposes of bail, while other jurisdictions do not give domestic and family violence special status. Bail conditions are considered from p 51. The authors note that it is important to avoid conflict between bail and protection order conditions because conflict increases the likelihood of breach (p 51). Two common types of bail conditions in domestic and family violence matters (exclusion conditions and perpetrator programs) are discussed.
Exclusion conditions are problematic when the accused has no alternative accommodation. An integrated response is required. This ‘can be achieved through police training and the establishment of collaborative relationships between police and support services, rather than by imposing a legislative duty on the police to take reasonable steps to secure accommodation’ (p 53).
The authors note that ‘in cases concerning family violence, the safety of women and children should always be a key consideration in the bail response.’ (p 57).
This report presents the findings of a trial of GPS tracking for family violence offenders and victims in Queensland. The trial assessed the effectiveness, reliability and responsiveness of GPS-enabled technology to track an individual accurately and activate an alert in the event of a pre-programmed zone being breached. The GPS-enabled technology was tested in different geographical areas and with police personnel rather than actual offenders and victims. Thirty-five tests were carried out, with the technology failing to respond in 26% of cases. The technical issues are discussed in more detail. Overall, the findings demonstrate that electronic monitoring does not provide an effective risk-mitigating solution for high-risk perpetrators and is not a reliable substitute for perpetrator case management. However, it may be of use in some lower-risk cases, in conjunction with other measures. This trial was a suggestion of the 2015 Queensland Special Taskforce on Domestic and Family Violence, which noted how little was known about electronic monitoring programs.
This report, which deals extensively with bail, discusses domestic violence offences from p 64. ‘In this study, domestic violence emerged as one offence in particular that may impact on rates of young people on custodial remand.
See at p 74 which discusses ‘Victims’ Views on Safety and Welfare’. It notes, ‘if the offence is one of family violence, police should set bail conditions that ensure the safety of victims’. See also from p 120 where the report discusses how appropriate bail conditions can reduce the risk of further harm to victims.
However, the Commission was concerned (particularly in relation to police bail) about ‘reports of police imposing inappropriate and unnecessarily onerous bail conditions. Such conditions include blanket restrictions on travel by public transport, broad geographic exclusion zones, and abstinence conditions without referral to any support services. Anecdotally, it appears that many of the most inappropriate bail conditions are imposed by police. Accused people may feel pressured to accept overly onerous conditions to be released, putting them at increased risk of breach. Breach may ultimately lead to remand, which might have been avoided if more appropriate conditions were initially imposed, together with referral to support services’ (p 62).
While this paper discusses the American context, some of the commentary has broad relevance to the Australian context.
‘This paper explores the issues related to pretrial release, highlights the experiences of several communities, and provides guidelines to communities for examining this aspect of criminal case processing in domestic assault cases’ (p 5).
The authors note: ‘The question of pretrial conditions in domestic violence cases is one of balance, balance between constitutional rights of the accused and protection of victims of crime, between safety and accountability, between ensuring appearance at trial and protecting others from harm, between a consistent response and the unique aspects of each case, each person, and sometimes the balance between space in the jail and the goal of safety’ (p 5).
See also at p 11 – ‘While the general standards of pretrial release set a foundation that permits close attention to the safety of any person or the public, a judicial officer may be reluctant to invoke processes or conditions that account for the specific context of domestic violence crimes. Yet domestic violence is a pattern crime and research has increasingly identified key factors associated with dangerousness, including prior history of domestic violence; estrangement, separation or divorce; obsessive, extreme jealously, escalating violence; access to guns; use of or threats with weapons; serious injury in prior incidents of abuse; threats of homicide and suicide; forced sex; stalking; prior police involvement; and, drug or alcohol use…Satisfying the second prong of the purpose of bail – “protect the community, victims, witness or any other persons” – is difficult without some level of inquiry into these aspects of dangerousness’.
