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Operation of bail in the youth justice system

It is critical to understand the way in bail processes operate in each of Australia’s youth justice systems in order to enable comparisons to be made across jurisdictions and to illuminate the ways in which the operation of bail departs from legislative provisions that govern bail. This section outlines the roles of the key figures in bail processes for young people—police, youth justice staff, prosecution and defence lawyers, the courts and bail service providers. This information has been gathered from the literature on bail and remand for young people in Australia, as well as from consultations with key stakeholders and documentation provided to the AIC for the purposes of this research.

Police

Police in all jurisdictions have the following options available when they apprehend a young person who they suspect has committed a criminal offence:

  • issue a formal or informal caution or warning;
  • refer the young person to a youth justice conference;
  • refer the young person to another available diversion program;
  • issue a summons to appear in court; or
  • arrest and charge the young person.

In general, a young person must admit guilt in order to be referred by police to a diversionary measure such as a caution, youth justice conference or diversionary program. Only the option of arresting and charging the young person involves a bail decision being made by police; bail is dispensed with in all other circumstances. Police decisions about whether to arrest young people therefore determine the number of young people about who bail decisions must be made. As such, police play a critical gatekeeping role when they decide whether to arrest a young person. In most jurisdictions, legislative provisions are in place that limit the discretion of police in this regard and create a presumption in favour of summonses or a court attendance notice being issued for young people instead of arrest (see Table 15).

Table 15 Presumption for summons or court attendance notice over arrest for young people
Jurisdiction Presumption for summons/court attendance notice
NSW Yes
Vic Yes
Qld Yes
SA Yes
WA Yes
NT Yes
Tas Yes
ACT Yes

Source: s 8 Children (Criminal Proceedings) Act 1987 (NSW); s 345 Children, Youth and Families Act 2005 (Vic); s 11 Youth Justice Act 1992 (Qld); s 42 Young Offenders Act 1994 (WA); s 22 Youth Justice Act (NT); s 24 Youth Justice Act (Tas); s 252J Crimes Act 1900 (ACT)

Bail decision making by police

The factors that must be considered by bail decision makers in making bail decisions were outlined in the previous section on bail legislation. The general considerations are based around the risk of failing to appear, ‘further’ offending and being a risk to the community. Decisions on bail conditions are generally designed to mitigate these risks. In Victoria and South Australia, the use of Bail Justices and Magistrates (respectively) over the telephone to review police refusal of bail is designed to ensure young people are not inappropriately remanded by police.

The evidence used to establish whether a young person displays these risks are usually:

  • seriousness of charge (whether this relates to any presumptions for or against bail);
  • criminal history of the young person;
  • bail breach history;
  • strength of evidence against the young person on the current charge(s); and
  • the young person’s personal circumstances.

According to bail decision makers interviewed for this research, a young person’s personal circumstances include their residence/accommodation, the level of supervision they will have if granted bail, their ability to care for themselves and their ability to abide by bail conditions. These factors were considered as unique to decisions for young people compared with adults. More informal factors such as the attitude displayed by the young person and their presentation were also identified by one stakeholder.

A de-identified example of an objection to bail affidavit provided to the AIC by Queensland Police for the purposes of this research listed the nature and seriousness of the offence, the character, antecedents, associations, home environment, employment, background and place of residence of the accused person, the history of previous grants of bail to the accused person and the evidence implicating the accused person, as facts to substantiate the risks considered for bail.

According to stakeholders in most jurisdictions, the most common bail conditions imposed by police include:

  • a curfew;
  • police reporting;
  • residential (ie reside as directed or at specific address);
  • non-contact; and
  • non-association (with people and places).

Other conditions imposed by police raised by South Australian stakeholders, included:

  • not to damage property;
  • not to threaten, harass or harm (usually in relation to alleged victims, witnesses or co-offenders);
  • attend school; and
  • obey house rules (parent or staff at residential care have the discretion to establish what house rules are).

Many stakeholders had concerns about the use of conditions by police to facilitate the monitoring of a young person rather than to mitigate the risks considered in a bail application. No jurisdiction appears to have training mechanisms for bail decision making for young people other than what is included in the mainstream sergeant training. Police interviewed for this research considered bail decision making for young people as a skill that comes with on-the-job experience. Police have discretion in all jurisdictions about which bail conditions to impose on young people’s bail undertakings. Stakeholders raised the need for better training of police on the traditional notions on what bail is designed to achieve and how the process differs from that for adults. The influence of police bail compliance activity on custodial remand rates is further discussed in the next section on drivers of remand.

In all jurisdictions, a police bail order is not reviewed by a Magistrate unless an application is made by the young person to have bail conditions changed or until the young person’s first court appearance. In some jurisdictions, a new bail order is automatically made by the courts at this time; in others, police bail is continued with varying levels of judicial scrutiny given to the conditions.

Bail Justices and Justices of the Peace

Justices of the Peace have the authority to grant bail under certain circumstances in Western Australia and Tasmania, and Bail Justices have the authority to grant bail under certain circumstances in Victoria. Generally, Justices of the Peace and Bail Justices are empowered by legislation to grant bail in situations in which the court is unavailable (eg on weekends and/or in non-metropolitan areas); their purpose is to enable an accused person to have a bail hearing and minimise the time an accused person spends on custodial remand waiting for a bail hearing in front of a Magistrate. Although every effort was made to consult with Justices of the Peace and Bail Justices for this research project, this was not possible. Nonetheless, stakeholders in Western Australia, Tasmania and Victoria were given the opportunity to discuss the role these bail decision makers play and how their considerations may differ from police and the courts.

In Western Australia, although Justices of the Peace grant bail in regional areas, stakeholders explained that there are no metropolitan-based Justices of the Peace who make bail decisions. That is, Justices of the Peace are not available to make bail decisions relating to young people arrested in metropolitan areas outside of business hours. Justices of the Peace in Western Australia are no longer able to refuse bail and detain a young person; rather, the courts must refuse bail before a young person can be detained in a youth justice facility.

In Tasmania, Justices of the Peace grant or refuse bail outside of business hours. Some stakeholders suggested that the bail decisions of Justices of the Peace tend to be more punitive and risk averse in response to community attitudes towards youth crime. A need for educating Justices of the Peace on the role of bail in the criminal justice system and using detention as a last resort for young people was expressed. In contrast to the chain of events that occurs following a bail decision by police, a young person must appear before the court within a prescribed time period after a bail decision made by a Justice of the Peace.

In Victoria, Bail Justices handle a bail decision if police bail is refused after court hours. Bail Justices make their decision based on information from police and the Central After Hours Assessment and Bail Placement Service (CAHABPS; Vic DoJ 2012). If a young person is refused bail by a Bail Justice, they must appear before the next sitting of the Children’s Court (Vic DoJ 2012). According to stakeholders, for some young people from regional, rural or remote areas, this will mean being transported to the Melbourne Children’s Court. The role of Bail Justices was described by some Victorian stakeholders as making an independent review of a police decision to refuse bail and acting as an advocate for the young person. Although only a small proportion of bail decisions in Victoria are made by Bail Justices, the Victorian Law Reform Commission (2007: 80) describes the system of having Bail Justices available provides a disincentive for police to remand an accused person ‘unless it is really necessary’.

As is the case in Tasmania, Bail Justices in Victoria were considered by some stakeholders to be more punitive and risk averse than the courts (see also Vic LRC 2007), with a substantial proportion of young people refused bail by Bail Justices later granted bail by the courts. As one stakeholder commented, however, Bail Justices must make a bail decision at a different point in the process than the courts. A more detailed case is presented to a Magistrate, including legal representation and information about the young person and the alleged offence, than is the case for Bail Justices. Therefore, while decisions by Bail Justices may seem punitive, it could be the case that Magistrates are simply provided with more and better information with which to make decisions (see also Vic LRC 2007).

Prosecution

Stakeholders from all jurisdictions were interviewed about the role the prosecution plays in court bail decisions for young people. In Western Australia and Tasmania, stakeholders from prosecution bodies were themselves able to be interviewed.

Western Australia is unique in that the Department of Public Prosecutions (DPP) is the prosecuting body for the Children’s Court in Perth. In all other jurisdictions, the prosecuting body in specialist Children and Youth courts is the police prosecution and it is only in the higher courts that the DPP prosecutes youth matters. This would only occur for a young person in relation to a very serious charge such as murder. This is also the case for young people before courts in regional and remote areas in Western Australia, where the WA Police undertake the prosecution role.

In relation to bail, at a court appearance, the prosecution respond to a young person’s bail application (as provided by the young person’s legal representative) by either putting forward to the presiding judicial officer grounds to oppose bail or to indicate that they do not oppose bail. As outlined below, there appears to be a great deal of variance in the detail in which the grounds are argued (whether in a formal written submission or verbally) and whether specific conditions are suggested bythe prosecution.

The remit of the WA DPP as explained by a representative included:

  • to protect the community;
  • to assess risk of further offences; and
  • to assess risk of non-appearance.

This remit, as detailed by the stakeholder, is different from the remit of the court and can result in the DPP and the Magistrate supporting the imposition of different bail conditions for a young person, or supporting the imposition of the same bail conditions for a young person, but for different reasons. The DPP representative explained that the DPP propose conditions that they believe will reduce the risk of a young people offending while on bail, but Magistrates impose conditions that they believe will ‘get the young person back on track’ (ie meet the therapeutic needs of the young person). For example, the DPP will suggest as a bail condition that the young person attend school or another educational institution, as this is regarded as an opportunity for the young person to be monitored. Magistrates, however, will impose school attendance because they view it as an opportunity for the young person to re-engage with education. This again highlights the varied philosophies that inform bail decision making among key personnel in the youth justice system.

Stakeholders interviewed for this research described varied decision-making processes that inform their decisions about whether to oppose the granting of bail to a young person. For example, WA DPP described asking three key questions to enable them to determine whether to oppose a young person’s bail application—Why is the young person in custody? What are they in custody for? and What is the strength of the prosecution’s case against the young person? The stronger the case against a young person, the more likely it is that the DPP will oppose the granting of bail to the young person.

A stakeholder from police prosecution in Tasmania stated that they make a decision about whether to oppose a young person’s bail application based on the test the courts use (ie the likelihood that the young person will fail to appear for the court hearing and public safety). It was also stated that this latter consideration can be interpreted quite generally by decision-making parties. One stakeholder explained that police prosecution will generally oppose bail for serious charges but may consider not opposing bail if they believe there are conditions that can be applied that would mitigate the risks of the young person failing to appear or jeopardising public safety.

In the Australian Capital Territory, stakeholders raised that the police prosecutors generally accept the police sergeant’s advice on whether a young person’s application for bail should be opposed. This was attributed to the junior level of prosecution lawyers for youth matters.

Stakeholders’ views about the punitiveness of the DPP by comparison with police prosecution were mixed. One stakeholder from Western Australia commented that the DPP are more stringent in their approach to opposing bail than police prosecution. Conversely, a stakeholder in New South Wales stated that DPP lawyers are more flexible than police prosecution, who are more likely to take a blanket ‘we oppose bail’ approach. Another stakeholder further explained that the DPP in the Children’s Court in Western Australia take a more thorough approach in either opposing or supporting a bail application. They submit more detailed submissions and are more explicit in recommending outcomes for the young person; for example, they may request that specific bail conditions be imposed.

Young people’s legal representatives

Young people’s legal representatives in the criminal courts (ie children’s defence lawyers) from New South Wales, South Australia, Queensland, Western Australia and the Northern Territory were interviewed for this study. While almost all stated that young people are always represented by a lawyer during a bail decision in court, stakeholders from Western Australia acknowledged that sometimes a young person’s legal representative is not available and the judicial officer would adjourn proceedings until the young person was represented.

The steps taken to prepare a bail application did not differ markedly among the jurisdictions. A list of young people in police custody (those who have had bail refused by police or Bail Justice/Justice of the Peace) who are to appear in court is given to Legal Aid each working day. This is usually the first time a children’s lawyer comes into contact with the young person unless they are an existing client or the young person contacted a private lawyer after they had been charged.

The following steps are usually taken by children’s lawyers in constructing a bail application for a young person:

  • determine that there is no conflict of interest in representing the young person;
  • review the charge sheet and/or relevant documentation from police;
  • meet with the young person and discuss the charge(s) and whether they want to be represented (most stakeholders concurred that it was rare for a young person to refuse representation); and
  • contact the young person’s family and/or youth justice to determine the young person’s current living, health and education situation and previous youth justice contact.

Some children’s lawyers interviewed for this study also explained that they may speak to police prosecution to determine their attitude to granting bail and whether the prosecutor would require certain conditions to be imposed in order for them to not oppose the granting of bail. Lawyers then apply for bail for the young person during the court bail hearing, usually verbally, with no formal submission of a written report required. Stakeholders reported that the time taken to prepare a bail application ranged from 20 minutes to a couple of hours.

Stakeholders from the Northern Territory explained that a bail application includes developing a ‘bail plan’. This is an assessment of the young person’s needs and circumstances regarding transportation, accommodation, supervision and support, and is similar to the ‘bail report’ provided to the court by youth justice in Western Australia. The development of a ‘bail plan’ involves children’s lawyers contacting support services and programs in addition to the young person’s family. They also try to pre-empt what bail conditions the court may impose and address the options for these conditions within the bail plan. Some legal stakeholders expressed frustration that there was no youth justice team or bail support officer in the Northern Territory to assist in this process, with the exception of officers from the Youth Justice Advocacy Project (run through the Central Australian Aboriginal Legal Aid Service). Although the court can order the Department of Justice to conduct a bail assessment, this requires an adjournment of some weeks and stakeholders considered these reports to sometimes be inaccurate and not always helpful.

Judicial officers and courts

Although all judicial administrators such as Magistrates and Judges have the authority to grant bail (see previous section on legislation), all jurisdictions have designated or specialist courts at the local level to deal with youth matters, including bail applications and breaches of bail. Specialist courts and Magistrates preside over care and protection matters in addition to criminal matters in all jurisdictions, with the exception of the Northern Territory, where care and protection matters are dealt with in the Family Matters Court.

  • In New South Wales, there are specialist Children’s Courts located in Sydney, Newcastle, Gosford and Wollongong. There is one specialist District Judge (President of the Children’s Court) and 13 specialist Children’s Magistrates who are based mainly in these specialist courts but also travel to other local courts for youth matters (Lawlink nd).
  • In Victoria, there is only one specialist Children’s Court, based in Melbourne, which hears youth criminal matters daily. Other courts have designated days where youth criminal matters are heard by non-specialist Magistrates (Children’s Court of Victoria 2012).
  • According to stakeholders, in Queensland, there is only one specialist Youth Magistrate, based in Brisbane. Queensland is unique in that they have a specialised Children’s Court of Queenslandat the District Court level, which has specially appointed judges from the District Court to preside over youth matters (Queensland Court nd).
  • In Western Australia, there is one Children’s Court in Perth in which a specialist District Court Judge (President of the Children’s Court and with the sentencing jurisdiction of a Supreme Court judge), four full-time and one part-time specialist Youth Magistrates preside over youth criminal matters daily. They also preside over youth matters in metropolitan local courts. In other regions, non-specialist Magistrates reside over youth matters (Clare et al. 2011).
  • In South Australia, there are two specialist Youth Magistrates and two specialist District Judges. The main Youth Court registry is based in Adelaide (SA Courts Administration Authority nd).
  • In the Northern Territory, youth criminal matters are dealt with in the Youth Justice Court. According to stakeholders, there is a designated Magistrate in Alice Springs that hears only youth matters on specific days.
  • According to stakeholders in Tasmania, under the Youth Justice Court Trial, there is one specialist Youth Magistrate who is based in Hobart and sees all youth matters in the Southern region.
  • According to stakeholders in the Australian Capital Territory, there is a Children’s Court and an appointed Children’s Magistrate, although any Magistrate can hear youth criminal matters.

This information highlights that not all young people are have their bail determined by a specialist Youth Magistrate; this is particularly unlikely for young people outside of metropolitan areas. While it is beyond the scope of this report to consider the ramifications of this in detail, it is worth noting that stakeholders interviewed for this research generally agreed that youth matters are more appropriately dealt with by specialist Magistrates, who work exclusively with young people, and have an understanding of the issues that young people in trouble with the law often face.

Statutory youth justice agencies

In relation to bail processes, the primary roles of statutory youth justice agencies in each of Australia’s jurisdictions are to provide court support to young people facing bail determinations, provide information to the court to assist judicial decisions about young people’s bail applications and to provide bail supervision and bail support services and programs to young people.

Court support and information

Statutory youth justice agencies also provide court support and information services relating to young people’s bail applications. Information regarding a young person’s bail application can be provided by youth justice via informal means (ie verbally) or through formal reports if requested by a Magistrate. Youth justice agencies also perform an important liaison role among the relevant stakeholders in the bail application process (ie young person, police, prosecution and defence lawyers, Magistrate/Judge and the young person’s family). In some jurisdictions, youth justice agencies also place staff in Children’s Courts to provide on-site assistance to young people.

Bail supervision and support

Bail supervision, if imposed by the courts as a condition of bail, is usually provided by statutory youth justice agencies and includes the supervision, monitoring and support of the young person to ensure they comply with the conditions of their bail order. Supervised bail can also extend to assessing and providing the young person with referrals to appropriate programs and services. Statutory youth justice agencies often fund non-government organisations to deliver specific bail support services to young people. However, in some circumstances, youth justice agencies directly provide bail support services other than supervised bail to young people.

Supervised bail is available from youth justice in New South Wales, Victoria, Queensland, Western Australia, South Australia and the Australian Capital Territory, and from the Department of Corrective Services in the Northern Territory. Although supervised bail is not formally available in Tasmania at present, youth justice intervention for young people on bail will be introduced through new powers to defer sentence under tabled amendments to the Youth Justice Act 1997. Youth justice agencies in some jurisdictions only provide supervised bail if the young person has pleaded guilty to the current charge(s). Supervised bail models and bail support programs provided to young people in each jurisdiction are outlined in the section on Bail Support Services and Programs later in this report.