Bail and remand

Introduction

18.158 Once a decision has been made to charge a young person with a criminal offence, the authorities have to determine whether the child should be detained prior to the court hearing or whether he or she can be bailed and his or her attendance at court secured by means of a summons or court attendance notice. Any child denied bail is detained on remand, either at a police station or a detention centre, until his or her case comes to court.^[359] CROC and the Beijing Rules provide that detention of young offenders pending trial should be a measure of last resort.^[360]

Bail

18.159 In all jurisdictions, police of an appropriate rank have the power to grant bail to persons charged with minor offences.^[361] Generally bail will be granted where the officer is confident that the person is not a risk to him or herself or others and that he or she will appear in court when required. Where bail is refused or cannot be granted by a police officer, the offender has the right to seek bail from a justice. Bail conditions vary but most children are required to agree to meet certain conditions rather than post money as security. This is appropriate. However, conditions imposed on young suspects must not be unreasonable or unrealistic.^[362] For example, 24 hour curfews are tantamount to detention, disrupt education and may exacerbate problems in the home.^[363] Some government submissions supported curfews.^[364] Bail conditions should not criminalise a young person’s non-offending behaviour. For example, police should not attempt to deal with anti-social behaviour such as petrol or glue sniffing by requiring children to avoid that behaviour as a bail condition.

18.160 The bail conditions applicable to a young person who has been charged with a federal offence are those of the State or Territory in which the charge was laid.^[365] In most States and Territories there are special procedures regarding bail for children.^[366] In Tasmania and Victoria the child must be released unconditionally, bailed by police or brought before a court within 24 hours of being taken into custody.^[367] In NSW police are also obliged to bring a child who has been refused bail before a court ‘as soon as practicable’. In reality this may mean a delay of three days because there is no provision for children arrested immediately before or during the weekend.^[368] In the Northern Territory a child who has not been released from custody must be brought before a court ‘as soon as practicable and in any case within 7 days after the arrest’.^[369]

18.161 In Queensland a child must ordinarily be bailed by a police officer if the children’s court cannot deal promptly with the child.^[370] The legislation also authorises police to release the child into the custody of a parent or permit the child to go at large without bail on the condition that the child surrenders into the custody of the relevant court when his or her charge is to be heard.^[371]

18.162 In Western Australia a child is entitled to be released on bail provided a responsible person, such as a parent, gives a written commitment to ensure the child complies with any conditions unless the judicial officer considering the application is not satisfied of certain specified matters, such as the child’s attendance in court.^[372] A young person who is refused bail must be taken to a detention centre as soon as practicable.^[373] The children’s court has the power to remand a young person suffering from any mental or nervous disorder or handicap for up to 21 days for observation.^[374]

18.163 Victorian legislation contains a unique section which provides that a child is not to be refused bail on the sole ground that he or she does not have any, or adequate, accommodation.^[375] This provision is statutory recognition of the problem of ‘welfare’ detention, that is, children who are detained in custody because police are concerned that there is nowhere else safe for them to go.^[376] Welfare detention affects a disproportionate number of young female suspects.^[377] Crime statistics do not indicate whether the Victorian provision has in fact reduced the number of young suspects who are refused bail. However, the Inquiry considers it an appropriate legislative safeguard.

[R]emand is sometimes used inappropriately to provide a resolution to some social problems. For example when it is used due to lack of accommodation for young people.^[378]

In addition, the Victorian Department of Human Services operates a Bail Facilitation Program that seeks to prevent the inappropriate remand of young people. Staff assist young people to obtain support services such as accommodation and legal advice.^[379]

18.164 The problem of inadequate accommodation for young people released on bail has been addressed in a number of other jurisdictions through the estab-lishment of bail hostel programs. For example, the South Australian Aboriginal Child Care Agency has set up two safe houses in Adelaide that provide an alternative to ‘secure care’ for Indigenous children who cannot be released to family or community members.^[380] The Inquiry considers that each jurisdiction should establish bail hostels in all regions.^[381] This has clear resource implications for governments but costs could be reduced in a number of ways. For example, bail hostels could be combined with other community functions in less populous areas. No inference as to a child’s likelihood of appearing in court or committing further offences should be drawn from the fact that the he or she lacks permanent accommodation.

18.165 The Inquiry considers that all children should be legally represented during bail applications. This view is supported by the National Children’s Youth Law Centre and the NSW Youth Justice Coalition.^[382]

18.166 Bail is particularly problematic for children from rural or remote communities. For example, children are often transported long distances to an appropriate detention facility pending a bail hearing. If the bail application is successful the released child often has no way of returning home.^[383] Where a child is released on bail, police should have a statutory duty of care to ensure that the child is able to return to his or her carers promptly or an appropriate referral is made to ensure suitable alternative accommodation is provided.^[384]

18.167 Evidence suggests that police and courts may be more reluctant to grant bail to Indigenous young people than to other children despite the Royal Commission into Aboriginal Deaths in Custody recommendation that juveniles should only be detained in police lockups in exceptional circumstances.^[385]

Aboriginal and Torres Strait Islander young people in police lock-ups is a major issue, and the intent of the recommendation has not been implemented in most jurisdictions.^[386]

The over-representation of Indigenous young people in police custody is particularly striking in Western Australia. In August 1995, 61% of young people in custody were Indigenous despite making up only 5% of the youth population.^[387]

18.168 The Royal Commission into Aboriginal Deaths in Custody recommended that governments and Aboriginal organisations work together to devise strategies to reduce the rate at which Aboriginal juveniles are separated from their families and communities.^[388] Research suggests that this recommendation has not yet been adequately implemented.^[389] The Inquiry considers that all police who may deal with young suspects should be given specific training in the importance of ensuring that Indigenous young people are not unnecessarily separated from their families.

Remand

18.169 Children who are refused bail are remanded in custody until their matter comes before a court. The time a child spends on remand depends on a number of factors. Children who plead guilty are generally dealt with fairly quickly whereas it may take several months for a defended matter to come before the court.^[390] Further delays can occur if a child’s legal representative is unable to defend the matter immediately, either because the child has not given instructions or because of limited time and resources.^[391]

18.170 Being remanded in detention can have serious consequences for accused children. Children report feeling isolated and frustrated by the experience, particularly as they often do not have access to the same programs as detainees serving a sentence. In addition, placing a child on remand can put stress on family relationships and disrupts the child’s education.^[392] Young people on remand feel that they are often treated as if they have already been found guilty.^[393]

18.171 On the other hand there is a small number of children who, while not thriving on remand, at least receive a better standard of care than they would if left to fend for themselves.^[394] They include homeless children and those from seriously dysfunctional families, for example, those with violent carers. When they are on remand these children have a relatively safe place to sleep and three meals a day. However, chronic welfare problems should not have to be solved by placing young people on remand.^[395] Where it is necessary to detain young suspects on remand, they should be separated from adult detainees and young women should be separated from male detainees.^[396]

18.172 Young people must have access to legal advice while on remand so that they can make further bail applications if appropriate and properly prepare their defence. Largely this is a matter of each detention facility ensuring that remandees have unfettered telephone access to their solicitor. In addition, they should be able to access legal advice through the 24 hour freecall service proposed at recommendation 227.

18.173 The States and Territories differ in their treatment of children on remand. In Victoria children remanded in custody must be placed in a remand centre unless the regulations permit police custody in that particular region of the State.^[397] The benefits of this provision are undercut by the fact that police custody is permitted in populous regions such as the City of Bendigo. In that case it is particularly inappropriate since Bendigo is a relatively short drive from Malmsbury Detention Centre.^[398] If held in police cells under the legislation a young suspect has a statutory right to be detained separately from adults and with members of his or her own sex.^[399]

18.174 Western Australian legislation states that young suspects may be remanded in detention centres.^[400] Police orders provide that in deciding whether to transfer a young suspect from a country lock-up to a detention centre consideration should be given to the distance to be travelled, conditions at the lock-up such as over-crowding, the availability of escort staff and the need for family support.^[401]

18.175 Children living in rural or remote areas who are refused bail are often remanded to a detention centre hundreds of kilometres from their home, disrupting their schooling and family relations.^[402] If they are remanded locally it is usually in the general police holding cells or at an adult gaol.^[403] These problems affect Indigenous children in particular as they are the most likely to live in remote communities.

18.176 The Inquiry considers that young suspects should be transferred from the police station at which they were charged to the nearest juvenile detention centre at the first opportunity. In any event, they should not be remanded in police custody for longer than 24 hours. In geographically remote communities where it is not feasible to transfer juvenile suspects to a juvenile detention centre, the police station or other appropriate premises should be proclaimed or gazetted as a detention centre for the purposes of remanding young offenders provided the facilities have the approval of the relevant State or Territory body dealing with police complaints. The police station or other premises so proclaimed must meet the national standards for juvenile detention facilities.^[404]

18.177 In granting approval, the ombudsman should consider whether the police have consulted with the local community, particularly Indigenous groups, to find the most creative and appropriate means of remanding young people in police custody.^[405] Where young suspects are detained in police custody for more than 24 hours it may be useful for the community to organise for an official visitor to inspect whether the conditions are suitable in the particular case. If not, the matter could be reported to the relevant police complaints handling body.