Kyle Stewart was due to appear before Sunshine Magistrates Court on March 8 to face a charge of unlicensed driving. He had been arrested and held in police custody, but officers neglected to take him to court that morning despite being required to do so.
The case came before Magistrate Kaye Robertson at around 10.30am, who expressed dissatisfaction with police and ordered the defendant’s release.
“How can I, or why should I, remand a person who has not been brought before the court pursuant to a warrant issued by this court which allowed him to be held?”, the Magistrate remarked, before granting bail and adjourning Mr Stewart’s case until March 28.
But rather than comply with the order and release Mr Stewart from custody, police kept him locked up for a further nine hours before taking him to the newly established night magistrates court, where a different magistrate decided to refuse bail and remand him in custody.
A hearing the next morning confirmed that decision.
Victoria police use North Korean tactics
The next day on March 10, Mr Stewart’s lawyers filed an application in the Victorian Supreme Court accusing police of abusing court process and wrongfully imprisoning their client.
The lawyers described the conduct of police as “forum shopping”, comparing the tactics to those of North Korean authorities.
Supreme Court Justice Kate McMillan was unable to reach a decision on the matter without a recording of the original local court hearing. But after eventually obtaining and listening to the audio recording, Her Honour ruled that police had unlawfully contravened the magistrate’s order to release Mr Stewart.
Last Wednesday night, Justice McMillan ordered Stewart’s immediate release.
“I am satisfied that the action of police in continuing to hold the plaintiff in custody after his hearing before Magistrate Robertson at approximately 10.35am on 8 March 2017 was unlawful.”, Her Honour found.
“It follows that the transport of the plaintiff by the police to the Melbourne Magistrates’ Court night court for the purposes of having the Watson matter effectively reheard was also unlawful.”
By that stage, Mr Stewart had been illegally imprisoned for seven days.
Abuse of process
Victoria police are accused of misusing the state’s new night court system, which was established under the premise of protecting the public in the wake of the Bourke Street massacre.
Mr Stewart’s lawyers have foreshadowed legal action over the false imprisonment of their client.
The tragedy that led to the reforms
Dimitrious Gargasoulas allegedly drove his car through the centre of Melbourne’s CBD at high speed on January 20 this year, mowing down as many pedestrians as he could. Gargasoulas killed six people and wounded at least thirty others.
The 26-year-old was charged days before to the massacre with speeding down the wrong side of a road and ignoring a police direction to stop. Police opposed bail. However, a bail justice granted Gargasoulas bail. He was due to appear in court on the same day he carried out the CBD attack.
Immediately after the tragedy, the Andrews government announced that a review of the bail system would be carried out by former Supreme Court Justice Paul Coghlan. The government also established the new after-hours night court to hear bail applications.
Melbourne’s Night Court
The night court operates seven days a week, from 5pm to 9pm at Melbourne Magistrates Court. The state government aims to extend its hours of operation, along with holding these night time hearings in local courts throughout the state.
In Victoria, if police arrest someone they must determine whether he or she can be released on bail or held in custody. If police refuse bail, then an individual has the right to make an application for via a court or a bail justice.
After arresting and charging a person after 9pm, police have the power to remand them overnight until they can see a magistrate the following morning. However, an individual who’s been charged after-hours can apply for bail before a bail justice in an out-of-court session.
Victoria’s notorious bail justices
Victoria has 230 bail justices. They are volunteers who must be at least 18 years old, Australian citizens and justices of the peace.
However, bail justices have come under a lot of criticism as they have very limited training, and manyh feel can be unduly influenced by the parties involved. They undertake a three day course, which includes one day of home study. They do not receive ongoing training.
Victoria is the only Australian jurisdiction to use bail justices. In other states, such as NSW, a judge, magistrate or registrar must assess a bail application in court.
Victorian attorney-general Martin Pakula hailed the new night court system as a successful “first step towards ensuring that more contested bail matters are dealt with by legally trained magistrates.”
He claims to be looking forward to the recommendations of Justice Coghlan in his review of the state’s bail system, which is scheduled to be tabled on April 3.
The appropriateness of using bail justices will be under consideration in the review, as well as whether there should be different rules depending on the type of offence that has been alleged.
Justice Coghlan is tasked with balancing the competing interests of protecting the community and the presumption of innocence – a tension that exists in any consideration of bail laws.
Overflowing with inmates on remand
Stricter bail laws are likely to lead to an increase in inmates being held on remand in Victoria’s already overcrowded prison system. Victorian Sentencing Advisory Council figures released last November revealed that the state’s prison population increased by 67 percent over the decade ending in 2015.
The council identified the reason for the skyrocketing prison population as the ever-increasing numbers of inmates being held on remand. Since 2006, the number of inmates on remand in Victoria has increased by a staggering 154 percent.
The dangers of remand
As Sydney Criminal Lawyers® recently discussed with professor of criminology at Sydney Law School Murray Lee, remand centres often tend to “be riskier facilities, where the possibility of harm may be increased for those detained.”
Professor Lee made the point that once an individual is imprisoned, it’s usually “a predictor to future offending.” This means that even if an inmate on remand is innocent, they’re still more likely to end up back in the slammer.
Presumption of innocence
On a broader level, many believe it significantly contravenes the presumption of innocence to imprison people for many months or even years on the say-so of police, and make it difficult for them to be released pending the outcome of their cases.
Current bail laws across Australia increasingly shift the onus of proof to imprisoned people who need to establish to a court that they should be released on bail. Indeed, it is harder to achieve bail in many instances than to obtain a not guilty verdict.
Thousands of people are currently being held on remand over allegations of non-violent conduct such as drug offences, and traffic matters which are not inherently dangerous, such as unlicensed driving and driving whilst disqualified.
Large numbers of those who are accused will ultimately have their charges withdrawn by the police or the DPP, or thrown out of court, or will receive a penalty other than imprisonment if they plead guilty or are found guilty.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.