Almost half of the people who are refused bail by New South Wales police are later released by the courts, according to a new report, with police wanting to avoid the responsibility of a poor bail decision.
The report, by the NSW Bureau of Crime Statistics and Research (Bocsar), observed the bail hearings of 252 defendants held in the NSW local court between February and May 2023.
It found that 44%, or 110, of those 252 defendants were released by the court after being refused bail by police. Alleged offenders usually have a bail hearing in court within 24 hours after being refused bail by police.
The executive director of Bocsar, Jackie Fitzgerald, said police have long appeared more conservative than the courts when granting bail.
“At the present there is a huge inefficiency in the way bail decisions are made in NSW,” she said.
“We have tens of thousands of people spending a single night in custody. This is potentially harmful for the individual, but also places a significant cost on courts, corrections and police in housing and transporting these individuals.”
The report allowed Bocsar to examine why police often take a different approach to that of magistrates.
It found police are more risk adverse, have a high concern for community safety, and want to avoid the consequences of a poor bail decision and associated scrutiny by the media, the community and victims.
The report found there was general agreement between police and courts regarding bail concerns, with both identifying reoffending and endangering safety as primary concerns.
But magistrates were more satisfied that those risks could be stemmed by placing conditions on a person’s bail rather than placing them on remand. The report said magistrates can access more information about the alleged offender, including details about their vulnerabilities or employment.
Fitzgerald said police rarely granted bail to people charged with “show cause” offences, where the presumption of bail is reversed and the alleged offender is required to demonstrate to the court why they should be granted bail. By contrast, the court granted bail to 55% of the defendants charged with “show cause offences” in the hearings studied.
Show cause offences can include firearms, drugs, and bail breach offences.
“We found it is virtually impossible for a defendant to rebut the presumption against bail if they trigger ‘show cause’ even if the offending is relatively minor,” she said.
“In one case a person already on bail for a prior offence was bail refused by police for stealing a bottle of soft drink.”
Julia Quilter, a criminal law expert at the University of Wollongong, said after governments adding to the list of show cause offences, police may need further training on the operation of the show cause test to ensure that it is not improperly used to deny bail.
“In the face of troubling rising remand rates in NSW, it is concerning that police are routinely refusing bail in matters where the courts are releasing those very same persons,” Quilter said.
“We should all expect that the requirements of the bail act are applied evenly by all decision makers – whether police or magistrates.”
According to Boscar’s latest update on the state’s custody figures, the remand population was at its highest point on record in June 2024, at 5,763. It increased by 19% in the year since June 2023.
The report found that police often refuse bail to domestic violence offenders to keep them locked up as a “de-escalation tactic”.
Earlier this year, the government also toughened the bail laws for serious domestic violence offenders, which reversed the presumption of bail.
Quilter said while she is generally opposed to people being held on remand because at that point they have the presumption of innocence, she said there are significant risks of domestic violence reoffending while out on bail.
“I do think there is a much-heightened risk of recidivism in the area of domestic violence offences with such sufficiently tragic and serious consequences for victims that I think we have to do whatever we possibly can to ensure those risks are sufficiently reduced,” Quilter said.
