By Paul Gregoire and Ugur Nedim
“Don’t do the crime if you can’t do the time” – it’s a catchphrase often used when someone is accused of a crime, or during discussions about bail laws or incarceration rates in Australia.
But the reality is that significant numbers of people are languishing in prison ‘on remand’ – ie before their cases are finalised – who will ultimately have their cases completely dropped, or thrown out of court, or will have their charges significantly downgraded resulting in sentences other than imprisonment.
And then there are the numerous cases of people sent to prison for crimes they never committed.
Many of these people will have their lives turned upside down as a result of the low threshold for arresting and charging people in Australia, and strict bail regimes across the nation.
Unlike in the United States where police are required to ‘ask questions before they shoot’ ie to gather evidence which amounts to ‘probable cause’ before arresting and charging a person, police across Australia enjoy the right to ‘shoot first and ask questions later’ ie to arrest and charge a person with an offence based upon their mere ‘reasonable suspicion’, and then attempt to gather any evidence during the court proceedings – which could take many months or longer.
Presumption of innocence
The presumption of innocence is a cornerstone of our criminal justice system. It places the burden on the prosecution to prove beyond a reasonable doubt that an accused person is guilty of an offence.
Although the presumption is not protected by the Australian Constitution, the courts have been at pains to emphasise its importance to our legal system. As Justice Kirby remarked in the 2007 case of Carr v Western Australia, the presumption, “is deeply embedded in the procedures of criminal justice in Australia, inherited from England.”
His Honour went on to state that the presumption might even be implied in the right to a fair trial.
But if that’s the case, why are thousands of Australians being held in correctional facilities on remand prior to their cases being determined?
As the number of inmates on remand continues to rise, and as bail laws become increasingly strict, many are being placed in a position of having to prove their innocence in order to be released pending trial.
Remand is the new black
The number of inmates on remand is going through the roof in this country.
On December 1 last year, there were 39,527 full-time prisoners in Australian correctional facilities. According to the Australian Bureau of Statistics, thirty two percent of these people, or 12,470, were on remand.
The number of unsentenced prisoners increased by 22 percent over the last financial year alone. There were 12,111 remand inmates being detained on June 30 last year, up from 9,898 the previous year.
The imprisonment of unsentenced inmates has been spiralling out of control for some years now. Between December 2011 and December last year, the number of inmates on remand increased by a whopping 84 percent. And this is during a period when overall rates of crime have been in decline.
No ultimate prison sentence
It’s a common perception that if someone is charged with a crime and refused bail, they must be guilty. But this is certainly not the case in reality.
Thousands of inmates will ultimately be released from custody after their cases are finalised; whether their charges are completely withdrawn due to lack of evidence, or thrown out of court, or downgraded to such an extent that the inmate does not ultimately receive a prison sentence.
In some cases, the court will order the prosecution to pay the defendant’s legal costs – but mud sticks, and a person’s career, social connections, family life, and financial position may already be irreparably damaged.
Charges completely withdrawn
Figures from the NSW Bureau of Crime Statistics and Research reveal that in NSW, of the 131,226 cases to go before the courts in 2015, 6,530 cases resulted in all charges being withdrawn by the prosecution. The figures have remained relatively constant between 2011 and 2015.
Australia-wide during the financial year 2015-2016, of the 602,759 cases that went before the courts, the prosecution completely withdrew the charges in 48,027 cases. And since the financial year 2008-2009, the number of cases completely dropped annually has consistently been between 7 and 8 percent, according to ABS figures.
And these figures don’t take into account the thousands of cases that are thrown out of court, or cases of wrongful convictions, or when very serious charges are reduced to far-less serious ones where a prison sentence is not ultimately imposed.
This means that many tens of thousands of people every year in Australia are accused of criminal offences which are ultimately withdrawn or dismissed.
One of the reasons that more people are being detained without proof of guilt is the tightening of bail laws across the nation. Brett Collins, coordinator of Justice Action, told Sydney Criminal Lawyers® last month that he considers this to be the major reason for the rise.
Mr Collins says the changes brought about by the Bail Amendment Act 2014 account for around 10 percent of people being refused bail in NSW in recent years.
The amendments require applicants charged with certain offences to “show cause” that their detention is not justified, effectively reversing the onus of proof.
There are over 900 offences and circumstances which attract the “show cause” provisions, including:
- Offences which carry a maximum penalty of life imprisonment under NSW law;
- Certain sexual offences against children;
- Offences involving wounding or grievous bodily harm;
- Serious personal violence offences;
- Some drug, firearms and prohibited weapons offences;
- Serious offences committed while a person is on bail or parole; and
- Serious offences committed while a person is subject to a supervision order, or where a person fails to comply with a supervision order.
Whittling away at the presumption of innocence
And on top of all this, over recent years, Australian parliaments have been enacting new laws that erode the presumption of innocence. NSW chief justice Tom Bathurst gave a speech in February last year where he estimated there were at least 52 new laws in this state that have weakened the principle.
Take the Serious Crime Prevention Orders Bill passed in NSW on May 4 last year. It allows courts to issue directives restricting aspects of a person’s life, including employment, movement and association. And they can be issued without proof that an individual has committed a crime.
Breaching such an order can result in up to five years imprisonment.
And then there’s the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014. It provides that if an individual travels to certain areas – such as parts of Syria or Iraq – they have to prove they weren’t involved in terrorist activity.
There’s a presumption of terrorist guilt here, not innocence. And the offence is punishable by up to ten years imprisonment.
So next time you hear someone quip about an accused person being able to do the time, perhaps consider that he or she may not have committed the crime.