An Open Letter to the Chief Magistrate of NSW on the Centralised Bail Practice Note

Dear Chief Magistrate Allen,

I write to raise concerns regarding a key aspect of the Practice Note for the new Bail Division of the NSW Local Court. I have already raised alarms regarding other aspects of this radical change, however this letter focuses on the 12-noon cut-off.

Clause 6 of the Practice Note is below:

“6. Cut Off Time

6.1 The cut off time in the Bail Division is 12 PM. An accused person will be included in the Court bail list for the relevant day if included on the Custody Information Form by a custody manager at a police station, or a CSNSW officer at a nominated CESU site and received by the Court electronically prior to 12 PM.

6.2 Any accused person that fails to make the 12 PM cut off and who remains in custody, will have priority in the next day’s Bail Division list.

6.3 Legal representatives who have obtained instructions on the day cut off is missed shall advise the Registry electronically that the bail application is ready to proceed. These matters will receive priority in the appropriate Court list in the Bail Division the next day.

6.4 Requests for late admission to the Bail Division may be made after 12 PM by Custody Managers or CSNSW officers. Any such application will be determined by the Registrar or the Bail Coordinating Magistrate in Chambers.”

I challenge the legality of that clause.

As I have previously written, under the previous system fresh custody matters were determined right up to the late afternoon – at least 3.30 pm. If someone was arrested at 10 am, the interview and processing can easily take until 1 pm or later, and of course the Local Court should, and until now was available if a defendant was refused bail by police. 

No Local Court in NSW has ever had a 12-noon cut-off to my knowledge. Very very rarely was a bail mater not reached. I think it occurred once to me in 22 years. This means many many more people will be spending a night in prison without access to the courts.

By way of hypothetical, Marcus, aged 27, is arrested at 10 am on a Tuesday for a domestic violence offence. Although he has no prior convictions, police were called to his mother’s house in the morning as he was very angry and threatened to kill her. Marcus has never been diagnosed, but clearly has developmental delay, resides at home with his widowed mother and lives life as a recluse. He is likely a vulnerable person at risk of homelessness and exploitation. Police refuse bail, largely because he has nowhere else to go, and although his mother would have him back, police have real concerns for her safety as Marcus’s behaviour has been escalating. 

The paperwork takes some time, but eventually his papers are forwarded to the centralised court at 12.30 pm. The regional court is sitting right next door to the station where bail is refused, and would have time to deal with his application, but is ignorant of the matter because of the centralised processing. Marcus’s lawyer is aware of the need to have this matter dealt with urgently, has worked out alternate accommodation, reckons the prosecutor would not oppose bail now, and is concerned that he is likely to get court bail, but lacks the ability to make any representations for inclusion in the Tuesday list in the centralised court. Only police or Corrective Services can do that.

His matter is automatically referred to the Wednesday list. Marcus’s bail thus remains refused on the original police determination, and he is transported to the closest correctional centre in custody some 150 km away. He is housed in the remand section at that prison overnight and shares a cell there with an older hardened criminal who has been charged and is bail refused with a range of assaults. Marcus is handcuffed for the transport and is deeply traumatised into near silence by the experience.

The legal situation is established by section 71 of the Bail Act NSW 2013:

“71. Bail applications to be dealt with expeditiously

A bail application is to be dealt with as soon as reasonably practicable.”

This is supported by section 99(3) of LEPRA which requires police to posit a person before the courts rapidly:

“The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.”

An authorised officer is effectively a magistrate.

The leading case on section 71 of the Bail Act is Ahmad v Director of Public Prosecutions [2017] NSWSC 90. This was a case where a Magistrate had adjourned a bail application for some months. The court noted at 20:

“That provision has a heading ‘Bail applications to be dealt with expeditiously’. However, headings to individual provisions do not form part of the Act, unlike headings to parts of an Act: s 35(2) Interpretation Act 1987 NSW.

Nevertheless, the court adopted an interpretation that incorporates urgency into the correct approach at 31:

“I turn then to the provisions of s 71. Ms Toomey argued that the expression “as soon as reasonably practicable” in s 71 really meant the same thing as the word “expeditiously” in the heading which, as I have said, is not part of the Act. It seems to me that the expression “as soon as reasonably practicable” does import a sense of urgency, however, only as urgently as the limited resources of a court will permit. By “resources”, I mean limited judicial resources and other limited facilities for processing matters. These are things over which the courts themselves can exercise but very limited control…..(32) Adopting the meaning “as urgently as the resources of the court will reasonably allow”, it is necessary then to turn to consider briefly the power of this Court to issue an order in the nature of mandamus.”

The Supreme Court has adopted the sense of urgency test, for example in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178 the court found a similar provision (at 146):

“…. requires that the Court act with a sense of urgency in listing, hearing and determining the matter.”

The NSW Court of Criminal Appeal in considering section 71 has interpreted the requirement as one to act “expeditiously” adopting the language of the heading itself – see for example Mustafa v R [2021] NSWCCA 164 at 33.

What is obvious from section 99(3) and section 71 is the legislative expectation that the courts must get a detained person before them as a matter of urgency and with speed. And the reasoning behind all this is obvious. Where police refuse bail, the courts will often grant it.

A BOSCAR report from 2021, suggests that where police have refused bail, the court will grant it in a little over half the cases for adults – that is many thousands per year. Deprivation of liberty is the ultimate and most serious punishment that is available to the criminal justice system, and innocent people (i.e. those charged but not convicted) must not be detained without access to the courts wherever practicable. This proportionately impacts First Nations people excessively. Closing the gap requires more than lip-service.

Practice Notes are a form of subordinate regulation. The path is convoluted – however the essential power is found in section 27 of the Local Court Act NSW 2007, which states:

“27 Practice notes

(1) Subject to the rules, the Chief Magistrate may issue practice notes in relation to any matter with respect to which rules may be made.

(2) A practice note must be published in the Gazette.

(3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.”

The “rules” are definitionally linked to section 26 of the Local Court Act, which requires them to be made by the curiously named Rules Committee, which in turn is expressed in section 25 as including the Chief Magistrate, and representatives of the Bar, the Law Society and others. The Practice Note must also be tabled in parliament for disallowance if determined. I presume that the Practice Note for the Bail Division went through this process, but the point is that as subordinate legislation it must yield to the Bail Act in general and section 71 in particular.

In my view the 12-noon cut-off is inconsistent with section 71, in that it creates a scheme where urgency gives way to arbitrary determination of timing and resources which will inevitably lead to greater levels of incarceration. This is entirely within the court’s control.

Marcus ought to be able to go before the local NSW Local Court on the Tuesday, and any determination not to deal with him so that he effectively is bail refused because the police papers were not lodged until 12.30 pm is challengeable. 

Whether this challenge is by individual cases or generally is beyond my knowledge remit, but the smell of injustice seeping through so-called efficiency drives is clear. There is a court next door after all. There are other courts in the region. There are even courts with AVL (audio-visual link) having a quiet day not in the Bail Division.

Any scheme of subordinate legislation which means that the resources of the entire court system are driven into a limited funnel with time constraints that increase incarceration ought to be either disallowed by parliament or the subject of challenge in the courts. The aim to relieve regional courts of bail matters on a list day may well be sound, but surely it is possible to design a system that ensures greater not lesser access to justice for the person charged but not convicted on their crucial first appearance in court.

Any systemic process change should have as its absolute litmus test whether or not more or less people will be spending time in cells without access to the courts after bail refusal by police. 

Parliament demands urgency and rapid access to justice, not efficiency and centralisation as the primary focus.

The 12-noon cut-off will not deliver urgency or access and is thus potentially unlawful as well as untenable. Marcus deserves better, as does the community.

This article first appeared on Professor David Heilpern’s Substack page