How Changes In The Bail Laws Impacted On The Sydney Siege Gunman Walking Free

THE FINAL CRIMES OF MAN HARON MONIS

On the morning of15 December 2014 Man Haron Monis, a 50 year old man believed  to have been armed with a pump-action shotgun, entered the Lindt Café in the legal precinct of Phillip Street and Martin Place, Sydneyand took 18 people hostage, conducting a siege that lasted until after 2am the following morning.  The consequences involved the deaths of Monis himself and two hostages, one a Barrister and the other the Manager of the Café.

Monis was on bail charged with serious offences, including being an accessory to the murder of his ex-wife, and more than 40 sexual and indecent assault charges

These events would not have occurred if Monis had not been granted bail. The bail he was granted included conditions that there be a deposit the sum of $10,000, that he surrender his passport, live at a specified address and report to the Police daily.

WHAT IS BAIL?

It is a fundamental principle of English Law that a person charged with commission of a crime is presumed to be innocent until he or she is found to be guilty according to the law. During the period between charge and trial, the accused has the benefit of this presumption, while the community acquires an interest in being protected against the commission of further offences by the accused, and in ensuring that he or she participates in the process by which guilt or innocence will be proved beyond a reasonable doubt.

One simple solution is to keep all accused persons in custody until the trial is concluded. That is, of course, unacceptable. Parliament has the task of legislating a procedure for balancing the interests of the accused and the community, and weighing up all the known relevant facts. That procedure  involves the historical concept known as bail

Bail is a pledge to the Court, on the basis of which an accused person is allowed back into the community with an assurance that he or she will appear before the Court on a future date. The pledge can take various forms, including personal undertakings by the accused or other acceptable persons, obligations to report to the Police at set intervals, and deposits of money or other property.

BAIL LAWS IN NSW

The law relating to bail is set out in the Bail Act. This Act was amended on 20 May 2014. Parliament agreed with submissions from several quarters that the law and practice had become complex and was producing results in individual cases that were inconsistent and unjust. The reasoning was that the regime was based on “presumptions” either in favour of, or against, bail depending upon the nature of the alleged offence, and anomalies had been identified when bail decisions in cases having some similarities were compared.

The fundamental change was that the new system is based on the concept of “unacceptable risk”. That is, that the test to apply is whether exposure to such a risk exists. The risks that are identified are:

1. that the accused will fail to appear in any proceedings for the offence,
2. that the accused will commit a serious offence,
3. the release of the accused will  endanger the safety of victims, individuals or the community, or
4. there will be interference with witnesses or evidence.

The legislation provides that the assessment of risk is undertaken against the background of the presumption of innocence and the general right to liberty. This is reflected in the changes to terminology in the Act. What was previously an application for “bail” is now known as a ‘release application’, if made by the accused, and a ‘detention application’ if made by the prosecution.

In determining whether an unacceptable risk exists in a particular case the decision-maker is not bound by the rules of evidence, so hearsay evidence is admissible, and the standard of proof is the ‘balance of probabilities’ test. The decision-maker is required to consider the accused person’s background, criminal history, history of violence and any special vulnerability or needs including preparation of case, whether the accused person has previously committed a serious offence while on bail, has a pattern of non-compliance with bail, AVOs, parole or good behaviour bonds, as well as matters relevant to the alleged offence including its nature and seriousness, likelihood of a custodial penalty and the strength of the prosecution case.

If no unacceptable risk is identified, the accused retains his or her freedom. If an unacceptable risk is identified, the question then is whether the accused should be released, with bail conditions, now called ‘requirements’ that will tend to alleviate the risk, or be detained. The Act requires that any requirements be reasonable, proportionate to the offence, and appropriate to the particular unacceptable risk. The decision-maker is required to provide reasons for any decision.

THE HISTORY OF MAN HARON MONIS

The background, criminal history, and any history of violence are factors to be taken into account whem an accused person makes a release application. The decision-maker may be provided with information by both parties, but the ability of the party opposing release is restricted by many factors, from a practical viewpoint.

With the benefit of hindsight, and the research that has been done into Monis’ history since 15 December 2014, it appears that he was involved in criminal activity even before he entered Australia as a refugee in 1996. It is said that he left Iran at a time when he was under investigation for illegal activity, with $200,000 stolen from the clients of his tourism business, that he has been known by various names and that he was marginalised socially because of his personal conduct and the views he has expressed from time to time. His conduct has included proclaiming himself to be a Cleric, chaining himself to a pole outside the NSW Parliament and going on a hunger-strike. ASIO took an interest in him during 2008 and 2009.

Monis’ history relating to correspondence he sent to the families of Australian Servicemen killed in Afghanistan is the subject of many Court decisions spanning several years, the last of which was a decision 3 days before the siege, when the High Court refused to set aside his conviction. The conviction carried with it a sentence of 300 hours of community service and a two-year good behaviour bond. He had been granted bail pending the hearing of this appeal, under the repealed legislation.

In 2012 Monis again came to the attention of the Police because of a violent altercation with his former wife. There are reports that he was involved in an acrimonious Family Law dispute with her.

How much of this history was provided to the Court when he was arrested and appeared before the Local Court charged with being an accessory before and after the fact to the murder of his former Wife in 2013 is not clear. It is said that the Magistrate was of the opinion that the Prosecution case was weak, and Monis argued that there was a conspiracy to frame him, relying also on his community ties and reputation. The Magistrate was of the view that all theories should be examined and granted conditional bail in December 2013, under the repealed legislation.

In 2014 Monis was arrested and charged with numerous counts of sexual and indecent assault on young women. After several Court appearances, he was released on the same conditions that had been imposed in 2013, notwithstanding that the new Bail Act had come into effect.

That was the position at 15 December 2014.

THE RELEVANCE OF THE 2013 CHANGES IN THE BAIL LAWS?

After the seige the Prime Minister described Monis as “deeply unstable” and said that there was no doubt that “the system” did not deal adequately with him. With the benefit of hindsight, most Australians would agree with those statements. But did the changes in the bail laws contribute to that failure?

As at 20 May 2014 Monis had been on conditional bail in relation serious charges for about six months. While on that bail he was charged with further offences and released on similar conditions, and after 20 May 2014, having been charged with 40 further offences, he was again released with similar requirements. There was, therefore, an opportunity for the prosecuting authorities and the Court to apply the “unacceptable risk” test, and despite the fresh charges, no substantive change was made to the bail requirements. If there was a systemic failure, it occurred at that point. Most Australians would agree that the 2014 charges should have triggered a thorough reassessment of the requirements, if only because they were committed while bail in the same terms as those requirements.

FURTHER CHANGES IN THE BAIL LAWS TO BECOME EFFECTIVE IN JANUARY 2015

Well before Monis drew public interest to himself in December 2014, and only a short time after the 2013 Act commenced, the Government had recognised factors in the regime set up under the 2013 Act which in its view failed to adequately protect the interests of victims and the community generally, and changed the law again. The Bail Amendment Act 2014 will become effective in January 2015.  The amendments effectively reinstate the presumption against bail for a wide range of serious offences, which are defined and known as “show cause” offences. The accused must show why his or her detention is not justified, and only if that test is satisfied can the decision-maker proceed to apply the “unacceptable risk” test and grant bail. The amendments also expand the list of matters to be taken into account at that stage.

If these provisions had been in force in December 2013, section16B (1) (k) would have applied to render the accessory to murder charges against Monis “show cause” offences. The outcome may well have been the same, but then at the time he came before the Court on two occasions in 2014, charged with the sexual assault offences, the fact that he allegedly committed those offences while on bail would have made them “show cause” offences, and the decision to grant bail, at least in respect of the numerous most recent offences, may not have been made.

CONCLUSION

There is no doubt that the law, both before and after 20 May 2014, was adequate, in theory, to afford appropriate protection to the community, and the most recent amendments reinforce that view. It is however the application of the law which creates errors and anomalies, many of which are only identified in retrospect, as in the case of Man Haron Monis, and there can never be any guarantee that a decision-maker will always make the “right” decision in every case.