Law Society supports same bail laws for all charges
The New Zealand Law Society believes there should not be a reverse burden of proof when seeking bail for defendants charged with murder or serious drug offences.
In a submission to the Ministry of Justice on the ministry’s Public Consultation Document on Bail in New Zealand – Reviewing aspects of the bail system, the Law Society says New Zealand’s criminal justice system is based on the principle that a person is innocent until proven guilty.
“The presumption of innocence means that a defendant should not be deprived of liberty, nor required to prove a right to liberty, simply because of an allegation of offending or of a particular form of offending.,” the Law Society says.
“There must be an adequate justification for depriving a person presumed to be innocent of liberty before his or her guilt has been determined. Bail applications should be considered on merit, irrespective of the nature of the charge.”
The submission says there is no empirical data to suggest that people accused of murder who are granted bail, breach the conditions of bail at a rate which gives grounds for concern.
Considering the law relating to electronically monitored bail, the Law Society says it should continue to be an option for defendants charged with serious, violent or sexual offences.
“If electronically monitored bail provides a sufficient assurance that the risks enumerated in s8 of the Bail Act 2000 can be managed, bail should be granted,” the submission says.
The Law Society believes there is no need for separate legislation to cover electronically monitored (EM) bail. It says this is simply a version of bail, and there is already legislation governing the grant of bail.
“Breach of EM bail should not be an offence. EM bail is a condition of bail and it would be unfair to punish a person for breach of a bail condition, when they have not been found guilty of the original charge for which they were on bail.”
Time spent on EM bail should be taken into account in sentencing. In some cases defendants spend a long time under restrictive conditions while on EM bail and it should be open to sentencing judges to consider this.
The submission agrees that punishment for failure to answer police bail should be changed to a three-month prison term, as an alternative to a $1,000 fine, as a more stringent deterrent. It also asserts that monetary bonds and sureties should be reintroduced in the District Court.
“There have been a number of cases where bail has been granted in the High Court solely because a defendant can be required to provide a bail bond or to obtain suitable sureties. There is no good reason why the imposition of that condition could not be done in the District Court. This would make the process both quicker and less costly in terms of resources”.
The Law Society thinks it is still appropriate for Police to be able to require monetary bonds and sureties, but understands that they are hardly ever imposed for Police bail. It suggests inquiries could be made to determine why this is the case.