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Criminal Law Blog QLD

GPS trackers are becoming an increasingly common tool of law enforcement

Anyone charged with a serious domestic violence offence in Queensland will now have to prove why they should be granted bail and allowed back into the community before they face court.

The Bail (Domestic Violence) and Another Act Amendment Bill 2017 was passed on 22 March 2017.

The Bill had five main objectives:

  1. Reverse the presumption of bail when charged with a relevant domestic violence offence. The onus is now on the accused to establish why he should be granted bail.
  2. To create a special bail condition that allows for a GPS Tracking device to track the movements of a person charged with a relevant domestic violence offence.
  3. To create an alert system whereby the alleged victims of the domestic violence must be informed when:
  • The defendant applies for bail, or
  • is released on bail, or
  • if the bail conditions are changed.

         5.To create a reporting provision to the parole system when a prisoner,

  • applies for, or
  • receives parole,
  • whether convicted or not of a domestic violence offence.

6. To create a provision to allow for an urgent appeal against the decision to grant bail. The decision will be stayed for three days and the alleged offender will remain in custody pending the appeal.

To achieve these amendments, the relevant sections in the Bail Act 1980 and Corrective Services Act 2006 were amended.

Balancing the rights of an alleged domestic violence offender and the public’s right to safety.

  1. Sec 16 of the Bail Act 1980 is amended to reverse the onus of proof in the bail application.

All people have the right to freedom of movement. However this right is not absolute, it must be balanced against the interest of public safety and the interests of victims of relevant domestic violence offences. The right of the police to arrest an accused person is such an exception (to protect public interests). The offender’s right to apply for bail again balances this right of the police to arrest. When considering the proposal to reverse the presumption of bail, it was noted that this presumption was shifted in other areas in Australia for family violence offences. The reversal is thus consistent with legislation in other Australian jurisdictions relating to domestic violence offences.

The offender is not denied bail. The onus is merely shifted to the offender to establish why bail should be granted. It makes it more difficult for the offender to be released on bail.

  • Sec 11 of the Bail Act 1980 is amended to allow the court to impose a specific condition relating to fitting a tracking device (GPS Tracker) as a bail condition.

A Magistrate, or a police officer authorized to grant bail, must consider and will decide whether or not to order a GPS tracking device to be fitted to an alleged offender.  Upon his release into the community, the offender will be fitted with an electronic tracking device, which will alert the police if the defendant enters a certain pre-determined range. This provides more safeguards for the victims and can ensure the safety of the victims throughout the trial process, which can often be lengthy.

  • A new provision, sec 11C, is added to create a new bail alert system.

The Prosecutor must notify the alleged victim when the defendant intends to apply for bail, or applies for a change in bail conditions within 24 hours.  

  • A new sec 11D, states that the alleged victim, or a person at risk of domestic violence from the defendant, must be notified immediately if the defendant is released on bail, or within 24 hours after the court or police officer becomes aware the person is a person at risk of domestic violence from the defendant.

The new parole alert system will notify victims of domestic violence when a prisoner is considered for parole, even if the reason they are in prison is not related to domestic violence. 

The Corrective Services Act 2006 is amended to include victims of domestic violence in the eligible persons register. The chief executive must keep a register of persons who are eligible to receive information about a prisoner. The new Clause 11 provides that victims of domestic violence can be included in the register as an eligible person to receive information about a prisoner, regardless of what he is in prison for. The Chief Executive must just be satisfied that the person has been a victim of domestic violence perpetrated by the prisoner. Clause 12 further states that the chief executive must provide such information as soon as possible after he becomes aware of the information, or at least 14 days prior to the prisoner’s date of release.

  • The new sec 19CA provides for the stay of the release on bail decision relating to domestic violence offences.  

This amendment of the Bail Act 1980 allows for a stay of the original decision to grant bail for three business days. The alleged offender will remain in custody till 4 pm on the third business day after the day the original decision was made, unless the court makes an earlier order after hearing additional evidence, or the review application is discontinued. This new provision provides that the prosecutor may lodge an urgent appeal against the decision to grant bail, if it is believed that releasing the defendant will pose a risk to public safety. To give effect to this provision, Sec19D is amended to ensure that a warrant can be issued to give effect to the stay. These two provisions work together to avoid the situation where the defendant will be released on bail, only to be remanded back in custody, while the original bail release decision is stayed and reviewed in the higher court.

The way forward….

To determine if this new provision regarding the stay of the original decision will in fact be effective in limiting domestic violence, Clause 9 inserts a two-year review clause. The Minister must table a review of this provision to Parliament as soon as practicable after the review period.

In tabling this Bill many interested parties were consulted, the Queensland Law Society, The Queensland Police Union of Employees, Women’s Legal Services and lawyers. It was important to balance the right to freedom with the interest of society and public safety. Alternative ways of achieving the objectives were considered, no alternatives were found. The proposed measures were found to be consistent with other legislative principles in other jurisdictions. It is not yet possible to estimate the financial cost of implementing these measures.

The legal community and the general public will follow the implementation and it’s effect on Domestic Violence with interest.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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