10. Hon TONY RYALL (National—Bay of Plenty) Link to this
to the Minister of Justice
How do recent changes to bail laws fulfil the Government’s aim to “arrest the sharp increase in the prison population in recent years”, and why?
Hon ANNETTE KING (Minister of Justice) Link to this
The Bail Amendment Act 2007 was designed to assist the remand population by ensuring that the focus is on community safety when custodial remand decisions are made, and that only defendants who pose a real and significant risk are remanded in custody. The pre-trial bail system must balance two competing considerations: the defendant’s right to be considered innocent until proved guilty, and the safety of the community.
Why did the Government make it easier to get bail, when the new law has already allowed Reno Lunjevich, a prolific burglar and drug user with a record as long as your arm, to get bail despite facing 50 new additional charges, thus allowing him to break into the homes of another 10 innocent families before the police caught him again?
Decisions on bail are made by judges, independent of the Government. However, the law was changed to make sure that references to risk were not vague, as they were in the previous law—that they were clarified. Risk as it was described was too vague. It has now been clarified. I am told that the “real and significant risk” threshold, which is in the new Bail Amendment Act, was chosen by examining judicial decisions on the previous risk threshold, especially the 2002 Court of Appeal decision of R v Hines. The Court of Appeal implicitly agreed with the High Court that to amount to a just cause for continued detention, the risk that a defendant may interfere with a witness should be more than nebulous and insignificant, and should be real and significant. Though this quote relates to interfering with a witness, it applies equally to the other grounds of failure to appear and offending while on bail.
Martin GallagherIs the Minister aware of any further comments on the Bail Amendment Act 2007 from the judges who have actually used the law?
Yes. In the R v Kāhui case—one of the first decisions after the amendment came into force—Justice Heath stated that the change to a “real and significant risk” threshold “does not seem to me to put the test any higher than was under the previous legislation, but rather to emphasise the need for a proper inference to be drawn from proved facts; as opposed to the Court engaging in speculation or guesswork about the possibility of a risk.”
Why has the Government made it easier to get bail, with the result that a man accused of murder was granted bail in October by a High Court judge who told the court that he had to grant bail because of recent changes to the Bail Act, amongst other things?
I have just quoted from the most obvious and public case that members of this House will be aware of, which is the R v Kāhui case, where Justice Heath said that the Act did not do what the member said. Justice Heath said that the change to a “real and significant risk” threshold did not put the test any higher. One of the reasons why the changes were made was so that there was not a vague interpretation but a much clearer one. I think that something that members of the public might be interested in is that 30 percent of cases where offenders have been remanded in custody have not led to a conviction.
Peter BrownNoting those answers, does the Minister see any discrepancy between the Government’s multimillion-dollar campaign that violence is not OK and the current bail laws and the way they are being implemented, as best epitomised by the case of Jio-Pene Sauaki, a violent offender who not only was given strict bail, despite police opposition, but breached that bail, then went on to fatally stab Mr Kelly Lawrence; does she see any discrepancy between that campaign and what is happening in reality?
I think it is fair to say that all members of this House would say that violence is not OK. But, at the end of the day, the separation between members of this House and the judiciary is such that judges will make those decisions as to whether bail should be granted, and they will make it on the information they have before them. After all, judges are entitled to all information, in order to make those decisions. I believe that in most cases they make the right decisions.
Why did the Government make it easier to get bail, when even under the previous law of this Labour Government Michael Curran was able to be bailed while on a charge of murdering Natasha Hayden, despite having 22 previous convictions, only to murder a defenceless 2-year-old while on that bail; surely that case is sufficient proof to the Government why bail laws should be toughened, not softened as her Government has done?
As with the previous law, the new law focuses on the risk that a defendant will fail to appear, interfere with witnesses or evidence, or offend on bail. The new law clarifies that the level of risk is required to be real and significant. The judges have the information before them. They make the decision whether bail will be granted, not this House. I could trawl through newspapers from back when that member was Minister and pull out cases where judges, under the bail laws that existed then, allowed people out on bail and they offended. Unfortunately, at times that happens.
Have the Minister’s answers this afternoon not demonstrated two things: firstly, that she is completely unaware that lawyers up and down courtrooms of New Zealand today are saying that it is much easier to get bail for their clients under this new legislation; and, secondly, that her legislation is all about reducing the number of inmates in jail, and is not about the safety of the New Zealand public?
No, I do not agree. The safety of the public is paramount, but the judges must take into account a number of factors when they are granting bail. They will continue to make those decisions—as we would expect. The member laughed and scoffed when I said that 30 percent of the people who are remanded in jail do not receive any conviction. That means that at least 30 percent of the people remanded in jail end up not being convicted. So judges try to balance—
It is not for politicians to decide that. We trust the judges to make those decisions. One would think, from listening to National Party members, that they would lean over to the judges and say: “Put that person in jail and not that person.” Of course they would not do that. They would also value the judgments that judges make every day of the week.